Petition for Writ of Certiorari — Hensley v. Home Depot U. S. A., Inc.

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In the

Supreme Court of the United States

DANNY HENSLEY, STEVE WINSLOW and VIRGINIA FLIPPIN,

on BEHALF of the ESTATE of LUCLAN DOYLE FLIPPIN,

Petitioners,

HOME DEPOT U.S.A., INC., :

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

Unrrep States Court oF APPEALS

FOR THE Firru Circuir

PETITION FOR A WRIT OF CERTIORARI

Susan E. HutcHIsoN

Counsel of Record

LEWIS & HUTCHISON, P.C.

1320 S. University Drive, #100

Fort Worth, Texas 76107

(817) 336-5533

Attorneys for Petitioners

7.

II.

i

QUESTIONS PRESENTED

DOES THE MCDONNELL DOUGLAS BURDEN SHIFTING

ANALYSIS AUTOMATICALLY APPLY TO ALL ADEA CLAIMS?

DID THE MAGISTRATE/DISTRICT COURT ENGAGE IN

SUBSTANTIAL EVIDENCE WEIGHING AND FAIL TO APPLY

THE STANDARDS SET FORTH BY THIS COURT IN REEVES V.

SANDERSON PLUMBING PRODUCTS, INC. WITH RESPECT

TO EVIDENCE OF AGE DISCRIMINATION?

DID THE MAGISTRATE/DISTRICT JUDGE MISAPPLY THE LAW

BY FAILING TO CONSIDER EVIDENCE OF DIFFERENT

TREATMENT OF SIMILARLY SITUATED EMPLOYEES DURING

THE PRIMA FACIE CASE?

DID THE MAGISTRATE/DISTRICT JUDGE FAIL TO APPLY THE

STANDARDS SET FORTH IN REEVES V. SANDERSON

PLUMBING PRODUCTS, INC. ADDRESSING AGE RELATED

COMMENTS AS EVIDENCE OF DISCRIMINATION?

DID THE MAGISTRATE ENGAGE IN SUBSTANTIAL EVIDENCE

WEIGHING AND FAIL TO APPLY THE CORRECT LEGAL

STANDARD WITH RESPECT TO THE DOCTRINE OF

CONSTRUCTIVE DISCHARGE?

i |

TABLE OF CONTENTS

an i aiicinsthniasiiinsscchiicsiinssiasishtiitialebsiasininsienin

a Na sicsiishiisicit eilntiinibissichliadbaiiiuitlasbteneilitoscsénbiiiih

REASONS FOR GRANTING THE WRIT ............c:scssssssssssseesesesescseseees

I

THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT HAS DETERMINED THAT THE

MCDONNELL DOUGLAS BURDEN SHIFTING SCHEME

APPLIES TO ADEA CLAIMS AND THAT ISSUE HAS

NEVER BEEN RESOLVED BY THIS COURT ...........c:.scsseeeeeeee

THE COURT OF APPEALS HAS SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS IN REFUSING TO EVEN ACKNOWLEDGE

THE PLAINTIFFS’ EVIDENCE OF DISCRIMINATION,

INCLUDING OVERWHELMING EVIDENCE OF PRETEXT,

AS TO CALL FOR AN EXERCISE OF THIS COURT'S

SUPE Ee BA Ds cxnscrenvescesnenssoreneseenaniatesbtenancaimaimeness

THE COURT OF APPEALS HAS SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS IN REFUSING TO ACKNOWLEDGE AGE

RELATED COMMENTS AS EVIDENCE OF

DISCRIMINATION AS TO CALL FOR AN EXERCISE OF

THIS COURT'S SUPERVISORY POWER.............cssesesseseseeseeees

IV THE COURT OF APPEALS HAS SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS IN MISAPPLYING THE LAW REGARDING

CONSTRUCTIVE DISCHARGE AS TO CALL FOR AN

EXERCISE OF THIS COURT’S SUPERVISORY POWER........... 21

SMe LUN IIIT isn srsnnpbeslsceninicdienepichanipoianieaiebscsnbtalooainbcaadielbemetieedtiaaian 22

APPENDIX

FIFTH CIRCUIT COURT OPINION. ..........:sccscsssssssssssssssssssesessees la

JUDGMENT OF THE U.S. DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS...........scssssesseseseeseseeceneeees 4a

ORDER OF THE U.S. DISTRICT COURT FOR THE NORTHERN

IE NE SD ice tesincntnecinsincharisiscsmniintassnihinerlinadesacnionn 5a

REPORT AND RECOMMENDATION OF THE UNITED STATES

| ____— EE A RENE RT TTR 6a

iv

TABLE OF AUTHORITIES

CASES

Barrow v. New Orleans S.S. Ass'n,

Be ee ts PE CE GE, BD orc sscccacncnssnctccessnncseccssasesccnosnace 21

Boze v. Branstetter,

912 F.2d 801, 806 (Sth Cir. 1900) ...............ccccsccccccssscscsssecesoess 22

Brown v. CSC Logic, Inc.,

82 F.3d 651, 654 (5th Cir. 1996) .........c cece ecceeeeeeeees 15, 17, 18

Glass v. Petro-Tex Chem. Corp. ,

Fe NE rcpt inansnhncicininentssentonsninensdnnncasie 21

Jenkins v, State of La. Dept. of Corrections,

874 F.2d 992, 996 (Sth Cir. 1989) ...............ccccccsccssssssescsssrseess 22

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 663 (1973) 15, 16

O'Connor v. Consolidated Coin Caterers Corp.,

FO a a aa ar esas cic cn cnepiiiasinniiabts 15

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) .... 14, 17

Russell v. McKinney Hosp. Venture,

SD Be ee Se Es BI cinttccinneetnnssonssnsicsansincnsansennsiins 20, 21

STATUTES

28 U.S.C. Section 1254(1)....... ssdialalasilldagactnsesta dian igiinaiubandaaaiuiapii 1

ae i BN IED ctnissnsinicnsentcsnsncnnihidimntonantnaminensetennsnneonnen 1

ee ais PTI sits eres ininsnnedtesicinianiniaennticndldibinadnaduninemanon 2, 15

l

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit in Danny Hensley, Steve P. Winslow,

Virginia Flippin, on behalf of the estate of Lucian Doyle

Flippin v. Home Depot U.S.A., Inc, (5° Cir. 10/26/01), is set

forth in the Appendix attached hereto (App. 1a).

The Judgment of the United States District Court for

the Northern District of Texas in Danny Hensley, et al., v.

Home Depot USA, Inc., is unreported and set forth in the

Appendix attached hereto (App. 4a ).

The Order of the United States District Court for the

Northern District of Texas in Danny Hensley, et al., v. Home

Depot USA, Inc., is unreported and set forth in the Appendix

attached hereto (App. 5a ).

The Report and Recommendation of United States

Magistrate Judge in Danny Hensley, et al., v. Home Depot

USA, Inc., is set forth in the Appendix attached hereto (App.

6a).

BASIS FOR JURISDICTION

The final judgment of the United States Court of

Appeals for the Fifth Circuit affirming the decision of the

District Court for the Northern District of Texas was entered

on October 26, 2001. This petition for writ of certiorari is

filed within ninety (90) days from that date. 28 U.S.C. Section

2101(c).

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. Section 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Age Discrimination in Employment Act

29 U.S.C. Section 623

(a) Employer practices. It shal] be unlawful for an

employer—

(1) to fail or refuse to hire or to discharge any individual

or otherwise discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of

employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his

Status an as employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to

comply with this Act.

STATEMENT OF THE CASE

The three Plaintiffs were all employed by Home Depot

as assistant managers at the time of their termination by the

new district manager, Troy Rice. All three have sued for age

discrimination under the Age Discrimination in Employment

Act, 29 U.S.C. Section 623 (“ADEA”).

Troy Rice became the Home Depot district manager

for the district in which the Plaintiffs worked in August 1996.

At that time, he was 33 years old. Mr. Winslow, an assistant

manager at the time, was 43 years old. Mr. F'ippin, also an

assistant manager at the time, was 45 years old. Mr. Hensley,

also an assistant manager at the time, was 49 years old. Mr.

Rice treated older employees differently than younger

employees (as reflected in the facts listed below) and set out

to get rid of the older employees. Mr. Flippin was fired. Mr.

Winslow and Mr. Hensley were constructively discharged.

3

All three of the Plaintiffs testified repeatedly in their

depositions about the pattern of age discrimination that

became evident and that there were a number of other

employees who also complained of age discrimination,

including Andy Guarino, Alex Cockcroft and Steve Temple.

And, while Home Depot attempts to use two managers, Terry

Bright and Steve Hedlund, to demonstrate that there was no

age bias because these managers were over 40, the fact is that

both of these men were subsequently demoted by Troy Rice.

A Steve Winlsow

Steve Winslow obtained a Bachelor's degree and a

Master's degree in music. He accomplished twelve hours

toward a Master's in Landscape Architecture at the

University of Texas, Arlington during his employment with

Home Depot. He received certification as a Texas Certified

Nursery Professional in approximately 1988. He received a

certification as a Texas Master Certified Nursery

Professional in approximately 1990. He obtained a Pesticide

Applicator’s License in approximately 1992.

After obtaining his degrees, Mr. Winslow worked as a

band director, including fifteen years as the band director at

Milliken Middle School. He also started his own landscaping

company and worked in a nursery in Lewisville for a number

of years before going to work for Home Depot. Mr. Winslow

began his employment with the Euless Home Depot in 1992

as an hourly associate in the Lawn & Garden Department

and was subsequently promoted to department manager in

that department. He then was asked to transfer as

department manager in the Special Services Department,

which position he held for approximately a year. He was

then promoted to assistant store manager and transferred to

work in the Hulen store under store manager Terry Bright.

Mr. Winslow was then transferred to the Richland Hills store

as assistant manager over the Lawn and Garden Department.

When Mr. Winslow first hired on at Home Depot, the

company did a reference check on his previous employment

4

which indicated that he was an “excellent” employee. In Mr.

Winlsow’s 90 day review at Home Depot, he was evaluated as

either meeting or exceeding expectations in all areas. It was

noted that he “always comes to work with a smile,” he

“makes customers want to come back with his happiness...”

and that his “professionalism is good.” In his six month

review, Mr. Winlsow was rated as having the strong points of

“knowledge, salesmanship, and a good attitude. You can

always count on Steve to work with others, to be friendly

and polite to coworkers and customers.” In his 1992

evaluation, Mr. Winslow was rated as “often exceeds

expectations.” Mr. Winslow's evaluation in 1993 was that he

often “exceeds expectations.” In December 1993, Mr.

Winlsow received an excellent evaluation with comments

including “works well with others, has gained the respect of

managers as well as other employees.” At the time of that

evaluation, Mr. Winlsow was the Outside Garden manager.

In December 1993, it was noted on Mr. Winlsow’s evaluation

that he has “always set an example of what a Home Depot

employee should be, either as a salesperson or as a

department manager....The morale in his department is

among the best in the store.” One of his strengths was his

“team building.” Mr. Winlsow received merit badges for

providing excellent customer service. He received an award

for “employee of the month” in July 1993. In 1995, Mr.

Winlsow had an “Employee Notice” placed in his personnel

file to recognize him for good job performance. Mr. Winslow

also received commendation letters from customers,

including one in September 1995, after he had been

promoted to assistant manager.

In November 1996, Mr. Rice decided to demote Steve

Winslow based upon alleged complaints by employees about

abusive behavior and allegedly undermining the store

manager (Terry Bright was the store manager at the time).

Mr. Rice does not know which associates made these

allegations (other than one named Tammy Trotter), what

was said that was allegedly “berating,” what was said that

was allegedly “undermining” the manager, what allegedly

defamatory statements were made or even what was said

5

that was allegedly “abusive.” Mr. Rice attempts to allege

that Mr. Winlsow had previously been counseled about his

“behavior and attitude” but there is no record of such in Mr.

Winslow’s personnel file, and Mr. Rice cannot say when Mr

Winslow was allegedly “counseled,” on how many occasions

or even what was said to him. Mr. Rice even admits that if

someone did indeed counsel Mr. Winlsow prior to his

demotion, there should have been written documentation of

that, yet he is not aware of any such documentation. Prior to

demoting Mr. Winlsow, Mr. Rice had never spoken to him

about his alleged attitude problem. With regard to the one

complainant that Mr. Rice could identify (Tammy Trotter),

Mr. Rice could not even describe the circumstances of her

complaint.

Terry Bright was Mr. Winslow's store manager at the

time of the alleged complaints and demotion. He interacted

with his assistant managers on a daily basis. If action is

going to be taken against an assistant manager under his

supervision, he is supposed to be involved in that process.

Yet Mr. Bright was never even contacted regarding the

allegations made against Mr. Winlsow or the disciplinary

action (demotion) that was taken. Mr. Bright never had any

issues regarding Mr. Winslow not being cooperative or

following advice. He never believed that Mr. Winslow was

undermining his authority as a manager and no one ever told

him that they believed that Mr. Winslow was undermining his

authority as a manager. He never heard Mr. Winlsow

“defaming” other assistant managers and never heard

another assistant manager complain that Mr. Winslow

defamed them. No one ever told him that Mr. Winslow had

threatened to fire them (alleged “retaliation”). While the

disciplinary action notice that notified Mr. Winslow of his

demotion states that his past behavior and current actions

destroyed his credibility, Mr. Bright states that he doesn't

know of anything that would have destroyed Mr. Winslow's

credibility and that he has never had any reason to doubt

anything Mr. Winlsow told him.

6

Mr. Winslow, in fact, did not threaten any employees.

He did not berate any employees or become abusive and he

did not undermine Terry Bright’s management.

Compare Mr. Rice’s treatment of Mr. Winslow to his

treatment of two younger employees, Mike Berry and Rod

Schmidt. Mr. Berry was also an assistant manager that

worked under Manager Terry Bright. Mr. Bright received

complaints about Mr. Berry’s attitude and treatment of

employees under his supervision on several occasions. He

discussed these complaints with Mr. Berry. There were also

complaints about Mr. Berry from other assistant managers.

There were people in Mr. Berry’s department that left or took

different positions with the company because of their

feelings about Mr. Berry. Mr. Rice even received a direct

complaint about Mr. Berry. In that situation, Mr. Rice went

and talked to the store manager to get his input “because

he’s there with him and that’s his store, and he observes that

and we wanted to see what his thoughts were on it.” Mr.

Berry has been promoted.

Mr. Rice had himself seen Rod Schmidt be aggressive

and overbearing and had counseled him about his behavior.

He subsequently received a complaint from an employee that

Mr. Schmidt had berated the employee using foul language.

Mr. Rice himself investigated the situation, including talking

to the store manager. Mr. Schmidt is now a co-manager at

the south Fort Worth store.

When Mr. Rice demoted Mr. Winslow, he told him that

they would come up with a “game plan” concerning his

future with the company. Yet Mr. Rice would not return Mr.

Winslow’s subsequent phone calls to try to find out what his

“future” with the company would entail. Mr. Winlsow had

spent considerable time and effort in enhancing his

knowledge of landscaping and plants for his career path at

Home Depot, going so far as to enroll in a Master’s program

in Landscape Architecture. Mr. Rice reassigned Mr. Winslow

to be an hourly associate in the plumbing department at the

Carrollton store. Mr. Winslow discussed his frustration with

ee

7

the Carrollton store manager, who went to try to get

information for Mr. Winlsow and then told him that it was

clear that there was no “game plan.” Mr. Winlsow also

received a significant pay decrease with the demotion with

no likelihood of an increase soon.

B. Mickey Flippin

Mickey Flippin obtained a degree in Business

Management from Southwest Missouri State University in

1974. He worked as an assistant manager for K-Mart for

several years and was then recruited by Wal-Mart as

assistant manager and then manager. He worked for Wal-

Mart for approximately nine years. The Flippins

subsequently bought a convenience store which they owned

and operated until their youngest son was born, at which

time they sold the store so that Mrs. Flippin could stay at

home with their children. Mr. Flippin then applied for work

at Home Depot.

Mr. Flippin was hired at Home Depot in Orlando,

Florida as assistant manager. He was transferred to

Tennessee, then Austin, then promoted to store manager and

transferred to the Euless store in 1992. In May 1995, Mr. F

Flippin was demoted to Assistant Manager and transferred to

the south Arlington store.

Mickey never received anything below a “3” on his

overall performance ratings (“consistently meet

expectations”). In his last evaluation before Troy Rice

became District Manager, Mickey was given a “3” overall.

There is no mention of any criticism by Mr. Hedlund related

to not working his scheduled hours, not obtaining

permission to alter scheduled shifts or anything related. In

fact, Mr. Hedlund testified that while he was Mr. Flippin’s

supervisor, up through August 1996, Mr. Flippin did a good

job.

Mr. Rice arrived on the scene in August 1996. Mr.

Flippin was written up on September 16, 1996, September 24,

8

1996 and fired on October 16, 1996. While Mr. Hedlund

provided the write ups to Mr. Flippin, he did so in

conjunction with Troy Rice, even though that was not his

normal practice.

On September 16, 1996, Mr. Flippin was written up for

leaving the “safe short,”not totaling the vault count or

showing the exact shortage with a reason and not contacting

the store Manager or Loss Prevention Supervisor about the

shortage. However, there was no cash shortage for that

vault count. Furthermore, the alleged inaccurate vault count

has not been produced to either Mr. Flippin in conjunction

with his write-up, to the EEOC or during this lawsuit.

Instead, the Defendant keeps providing a copy of the next

day’s vault count that was counted and signed off on by

someone entirely different! Even after Mr. Rice testified that

the September 9, 1996 vault count that the Defendant was

relying upon and had provided to the EEOC was not the

correct document, he attached it to his Affidavit in support

of Home Depot’s motion for summary judgment. He even

stated in his Affidavit under oath that a copy of the “vault

count sheet showing that Mr. Flippin signed off on it

although the count was not accurate are attached to this

Affidavit as Exhibit B” when in fact that is simply not true.

The exhibit attached to his Affidavit is the count from the

next day that was signed off on by someone other than Mr.

Flippin.

Additionally, there are other vault counts by other

assistant managers in approximately the same time frame

during 1996 where there were shortages that were either

unexplained or inadequately explained, violating company

policy, yet Mr. Rice had no idea about the existence of these

bad vault counts or whether anyone was reprimanded.

Mr. Flippin was written up again in September 1996

for leaving the store before it was ready for the next day's

business. Mr. Flippin had closed the store that night with

another assistant manager and a department manager. The

store closed at 9:00 p.m. and Mr. Flippin left at 11:15 p.m.

9

Both assistant managers were responsible for closing duties.

They each walked different departments to ensure that they

were ready for business. Mr. Flippin checked off his duties

on the appropriate checklist. Interestingly, the other

assistant manager (who was not reprimanded) didn’t even

sign the checklist that he had performed his closing duties,

even though he was supposed to. Neither Mr. Hedlund nor

Mr. Rice know what Mr. Flippin did or what the other

assistant manager did during the closing. The only way that

Home Depot alleges that the store was not ready for

business was that there was trash outside the building and

dead trees left outside of the Lawn and Garden Department.

At that time, the other assistant manager was over the Lawn

& Garden Department and that department was not signed

off on by Mr. Flippin as one that he was responsible for

checking. Furthermore, the other assistant manager left

after Mr. Flippin and, obviously, if the alleged trash and dead

trees were there when Mr. Flippin left, they were also there

when the other assistant manager left. Mr. Hedlund admits

that it would be important to know if the alleged trash and

dead trees were there when the other assistant manager left,

but that he never even asked him. Mr. Hedlund also admits

that he doesn’t know how many trees there were, what

containers they were in, where exactly they were left or even

if they were left there after Mr. Flippin left the store that

night! Additionally, the trash and dead trees were there

when Mr. Hedlund arrived at the store the next morning,

thirty minutes after the store had opened for business. He

was sure that he was upset that they hadn’t been cleaned up

in opening the store, but nobody was counseled or

reprimanded for that.

Troy Rice fired Mr. Flippin after Mr. Flippin took an

extended lunch time to attend his son’s baseball game. He

never asked Mr. Flippin for his side of the story before he

was fired. Mr. Rice says that the siore manager, Steve

Hedlund, had represented that he had told all the assistant

managers (including Danny Hensley) that they could not

alter their shift without his permission, yet he never

bothered to check with the other assistant managers to see if

10

that was true. Mr. Hensley says that Mr. Hedlund told them

that they could alter their schedules so long as someone was

covering their shift. Mr. Flippin told Mr. Hedlund that Mr.

Hensley was covering for him. Mr. Hedlund states that Mr.

Hensley later went home sick (although he doesn’t know

how much later). However, it is undisputed that when Mr.

Flippin left for the extended lunch, he had another assistant

manger covering his shift. Additionally, Mr. Bright testified

that Mike Berry, a younger assistant manager, took extra

long lunches “from time to time” and was not disciplined for

doing so.

Mr. Rice and Mr. Hedluna both state that the purpose

of a counseling notice is to allow an employee to fix a

problem, and that once it is given it should not be held

against them. Yet when Mr. Flippin was fired, Mr. Rice

factored in the prior performance deficiencies. .

C. Danny Hensley

Mr. Hensley graduated from Walnut Ridge High

School in 1965. He then attended Southern Baptist College

in College City, Arkansas, but did not obtain a degree. Mr.

Hensely’s jobs after high school included working in

construction, working for Big Star Grocery and then working

for Sterling Stores for approximately eleven years. He

started out as a stocker, was promoted to assistant manager

and then promoted to manager. He then left and went to

work for Wal-Mart as assistant manager in a move to gain

growth opportunity. He was subsequently promoted to

manager with Wal-Mart. But he was transferred four

different times and resigned so that he would not be

transferred again. Mr. Hensley then worked for Motorola,

where he was promoted to zone manager. He resigned due

to downsizing of the company. Mr. Hensley was hired as an

assistant manager at the store in Margate, Florida. He was

then transferred to Texas where he helped close an old store

and then was transferred to the Hulen store.

11

Prior to Mr. Rice’s arrival as district manager, Mr.

Hensley did not have an overall performance appraisal

below “consistently meets expectations.” In 1994, he was

rated as “often exceeds expectations” by Mickey Flippin. In

1995, the year before Mr. Rice’s arrival, Terry Bright

evaluated Mr. Hensley as “often exceeds expectations,” In

February 1996, Mr. Hedlund rated Mr. Hensley overall as

“consistently meets expectations” and noted that one of his

strengths was “good customer service.” After Mr. Rice’s

arrival, Mr. Hensley was written up three times in three

months (October, November and December 1996). In

February 1997, Mr. Hensley was given a “2” (improvement

needed) for the first time in his career. He was then written

up again in February 1997 by Troy Rice. He was forced to

resign in April 1997.

In October 1996, Mr. Hensley was written up because

a customer was injured, but the lift driver causing the

accident wasn't counseled or drug tested and Loss

Prevention was not notified. Mr. Hensley did not witness the

accident, was not in the area at the time of the accident and

was not approached by the customer at the time of the

accident. The customer went to another assistant manager,

Cathy Rogers, with the complaint. Ms. Rogers called Mr.

Hensley to fill out the forms. Mr. Hensley was reprimanded

for allegedly not following company policy regarding the

accident, but the company policies do not contain any

provision that would have required Mr. Hensley to be the one

to notify Loss Prevention, counsel the employee or obtain

drug testing. Mr. Hedlund, who wrote out the disciplinary

action, doesn’t even know what Mr. Hensley did with the

forms that he filled out. Furthermore, Mr. Hedlund

acknowledges that if Cathy Rogers took the complaint, she

does have responsibility for the follow up. In fact, Mr.

Bright, a store manager, testified that the person who

initially took the information from the customer (Cathy

Rogers) is the one responsible for getting the information to

the claims department. Yet Mr. Hedlund doesn’t even recall

asking Cathy Rogers what her involvement was and Ms.

Rogers was not written up for the incident.

12

On November 11, 1996, Mr. Hensley was written up

for being out of stock on an item. At that time, Tommy

Richards was the department manager in building materials.

It is undisputed that Mr. Hensley had placed an order for the

material and Mr. Richards had canceled it without notifying

Mr. Hensley. Mr. Hedlund wrote Mr. Hensley up, but doesn’t

even recall if Mr. Hensley told him that the department

manager had canceled his order. Mr. Hedlund doesn’t even

know how long it was between the time that Mr. Hensley

ordered the product (as he was supposed to) and the time

that the department manager canceled the order. On the

same day, it was determined that the out of stocks in the

Plumbing Department were extremely high, but the assistant

manager for that department, Cathy Rogers, was not

disciplined. Cathy Rogers was significantly younger than

Mr. Hensley at the time.

On December 7, 1996, Mr. Hensley was written up for

leaving a pallet of lumber in front of a fire door and blocking

an aisle. Mr. Hedlund went so far as to take pictures of the

pallet of lumber to put in Mr. Hensley’s file. Mr. Hensley had

closed the previous night with another assistant manager,

Tammy Nagle. Mr. Hedlund admits that there was another

assistant manager that night and that the last person who

“walked” lumber was responsible for the situation, but that

he doesn't recall who was supposed to have “walked” lumber

and he doesn't recall even talking to the other assistant

manager about the situation. Mr. Hensley testified that the

lumber was on a roll cart and that it was not in front of an

exit door or blocking the aisle at the time they closed. The

reason that the product was left on a pallet is that the

Receiving Department was full, and so the product was

simply pulled to the back of the Lumber Department.

On, February 1997, Mr. Hensley was written up for

two alleged customer incidents. The first one involves a

complaint by a customer that Mr. Hensley would not let her

in the store when it had closed at 9:00 p.m. Mr. Hedlund,

however, acknowledges that the entrance doors are to be

locked at closing time, that it is company policy that they

13

remain locked, and that assistant managers are expected to

follow company policy. There is nothing in the company

policy allowing for or instructing to open the doors to allow

customers in after closing.

The second alleged complaint involves a situation

where Mr. Rice was told by a customer that he wanted a

price on a fan, that a “man” was just there and when he

asked the man how much it cost, the man just said “I don't

know” and walked off. The customer did not name Mr.

Hensley. Mr. Rice assumed that the “man” was Mr. Hensley

because the customer described the man’s “height, hair

color, eyeglasses, clothes he was wearing and the hearing

aid.” Upon closer examination, Mr. Rice’s assumptions are

incredibly weak. First of all, the customer told Mr. Rice that

the “man” was about Mr. Rice’s height. Mr. Rice is “probably

five seven” while Mr. Hensley is six feet tall. R. Mr. Rice

cannot say what the description of the clothes was, what

color they were, or even what kind of glasses were

described. Furthermore; Mr. Hensley generally wore an

apron with a name tag while working, especially with the

district manager in the store. The customer did not

describe any type of apron or vest. Mr. Hensley was at the

bank that day, away from the store during the time in

question. Mr. Rice saw Mr. Hensley when he returned, but

does not know when he left, how long he was gone or what

time he returned. In fact, he didn’t even ask Mr. Hensley

these questions.

After Mr. Hensley was written up repeatedly within a

short span of time, it became clear to him that Mr. Rice

wanted him gone. He was miserable at the job, wondering

every day what they would find to write him up for and what

form the next harassment would take. Just going in to work

every day was incredibly stressful. It was clear that they

were looking for things to write him up and that he would be

fired at any time. He had a family to support and the anxiety

of not knowing day by day if he would be employed weighed

heavily on him. The continual write ups destroyed his self

esteem and his self confidence and it became extremely

14

difficult for him to make decisions and interact with other

Home Depot employees. He felt forced to find a different

job.

The Defendant filed a Motion for Summary Judgment

with respect to all of the Plaintiffs’ claims. The motion was

considered by Magistrate William Sanderson, who prepared

a written Report and Recommendation of United States

Magistrate Judge (App. p. 6a ). The magistrate found against

all Plaintiffs, except that he found that Steve Winslow was

constructively discharged, but then found no prima facie

evidence of discrimination. The district judge adopted the

magistrate’s findings, except that she found no constructive

discharge of Mr. Winslow. (Order Accepting Findings,

Conclusions and Recommendations of the United States

Magistrate Judge, App. p. 5a). The Fifth Circuit Court of

Appeals affirmed the district court (although the court of

appeals found that there was sufficient evidence of

Winslow’s constructive discharge, the court also determined

that Winslow failed to prove a prima facie case of

discrimination) (opinion of the United States Court of

Appeals for the Fifth Circuit, App. p. la).

REASONS FOR GRANTING THE WRIT

I. THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT HAS DETERMINED THAT THE MCDONNELL

DOUGLAS BURDEN SHIFTING SCHEME AUTOMATICALLY

APPLIES TO ADEA CLAIMS AND THAT ISSUE HAS NEVER

BEEN RESOLVED BY THIS COURT.

In Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme

Court states that “[t]his Court has not squarely addressed

whether the McDonnell Douglas framework, developed to

assess claims brought under §703(a)(1) of Title VII of the

Civil Rights Act of 1964...also applies to ADEA actions.

Because the parties do not dispute the issue, we shall

assume, arguendo, that the McDonnell Douglas framework is

fully applicable here.” Reeves, at 142. There is no Supreme

15

Court case that establishes that the burden shifting scheme

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802, 93 S.Ct. 1817, 36 L.Ed.2d 663 (1973) is applicable to

ADEA cases.

Additionally, in the Supreme Court case of O’Connor

v. Consolidated Coin Caterers Corp. 517 U.S. 308, (1996), the

Court recognizes that it has never determined that the

application of the McDonnell Douglas scheme is correct. Id.

at 1310. In O’Connor, the Court rejects the standard

McDonnell Douglas notion that a complainant must have

been replaced by someone outside his protected class, and

modifies the element to require replacement by someone

“substantially younger.” Jd. at 312-13.

The analysis set forth in McDonnell Douglas is a

judicially created mechanism to evaluate discrimination

claims, yet it creates a number of issues that allow employers

to circumvent the intent of the statuie to prohibit

discrimination “because of [an] individual’s age.” 29 U.S.C. §

623 (a)(1). In the present case, the Defendant attempted to

dispute the element of replacement by a substantially

younger employee by alleging that Winlsow was “replaced”

by an Assistant Manager that had already been employed as

an Assistant Manager prior to Winslow’s demotion. Since

there are numerous Assistant Managers at each store that

share duties, it is a way (particularly with limited discovery)

for the Defendant to manipulate the evidence in reliance

upon the McDonnell Douglas scheme.

Furthermore, by stating that the fourth “prong” of a

prima facie age discrimination case includes a showing that a

claimant “was otherwise discharged because of his age”

(Brown v. CSC Logic, Inc. 82 F.3d 651, 654 (5" Cir. 1996), the

courts have made it even more unwieldy and confusing to

determine when to examine various types of evidence. For

example, why shouldn't the court be able to examine

evidence that the employer was lying about its reasons for

the adverse action in determining whether an employee was

“otherwise discharged because of his age?” If it is evidence

of discrimination as the courts have held, then there is no

16

valid reason for refusing to consider such evidence and

throwing out a legitimate claim because of an allegation of no

“prima facie” case.

The automatic application of a formulaic burden

shifting scheme is confusing to the courts. In this case, the

evidence that younger employees in substantially similar

situations were not reprimanded/terminated should have

been assessed during the prima face determination as

evidence that the employee was “otherwise discharged

because of his age,” yet this evidence was never addressed by

the courts below.

In McDonnell Douglas, this Court stated that

“specification of the above prima facie proof...is not

necessarily applicable in every respect to differing factual

situations.” 411 U.S. at 802, n. 13. It does not seem that the

Court intended to create a narrow formula that must be

applied to all discrimination claims. Plaintiffs do not contend

that they are not required to establish the elements of an age

discrimination claim. Rather, we assert that it makes more

sense in a summary judgment review to evaluate all direct

and circumstantial evidence of discrimination in determining

whether a claimant has established a prima facie case.

Thus, Plaintiffs assert that the automatic application

of a formulaic burden shifting scheme is inapplicable and the

inquiry at this stage should simply be whether a material fact

issue is raised regarding whether Home Depot discriminated

against Plaintiffs based upon age. The summary judgment

evidence, including the overwhelming evidence of the

pretextual nature of Home Depot's reasons for the adverse

actions, establish such material fact issues.

17

Il. THE COURT OF APPEALS HAS SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS IN REFUSING TO EVEN ACKNOWLEDGE THE

PLAINTIFFS’ EVIDENCE OF DISCRIMINATION, INCLUDING

OVERWHELMING EVIDENCE OF PRETEXT, AS TO CALL FOR

AN EXERCISE OF THIS COURT'S SUPERVISORY POWER.

The Fifth Circuit Court of Appeals affirmed the

summary judgment against all Plaintiffs “essentially for the

reasons articulated by the district court” (Fifth Circuit

Opinion, App. p. 3a). The district court adopted the findings

of the magistrate. The magistrate engaged in substantial

weighing of facts in direct contradiction to this Courts’ edict

in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In fact, ina

thirteen page opinion, the magistrate mentioned Reeves only

in a footnote addressing why he was not factoring in an age-

related remark and stated that “(t]he Reeves decision hardly

evinces a sea change in employment discrimination law.”

(Report and Recommendation of United States Magistrate

Judge, App. 16a — 17a, n. 4).

Additionally, even though the Plaintiffs presented

direct evidence that younger employees were treated

differently under substantially similar circumstances, the

courts refused to consider such evidence in establishing the

prima facie case.

The four elements of a prima facie case are: 1)

plaintiff was discharged; 2) he was qualified for his position;

3) he was within the protected class; and 4) “he was replaced

by someone outside the protected class, someone younger or

was otherwise discharged because of his age.” Brown v. CSC

Logic, Inc. 82 F.3d 651, 654 (5" Cir. 1996). In Brown, the

court specifically addresses element four and states that

“[t]he elements of a basic prima facie case include the

possibility that a plaintiff may not be able to show he or she

was replaced by a younger employee. In such a case, the

plaintiff may instead meet his burden by demonstrating that

18

he was otherwise discharged because of his age. “ Id. at 654-

55.

Each of the Plaintiffs in this case has established a

prima facie case of discrimination. Each was discharged

(Mr. Flippin was fired, Mr. Hensley and Mr. Winslow were

constructively discharged as discussed below). Each was

qualified for the position of assistant manaager (Home Depot

does not dispute this aspect of the case). Additionally, each

Plaintiff was clearly within the protected class (over 40). Mr.

Flippin and Mr. Hensley were both replaced with younger

workers. Home Depot alleges that Mr. Winslow was

“replaced” by Stuart Lazarus. However, Mr. Lazarus was

already employed by Home Depot as an assistant manager

before Mr. Winlsow’s demotion.

Additionally, there are at least substantial fact issues

with regard to whether each Plaintiff was otherwise

discharged because of age. The facts demonstrate a pattern

of age discrimination in Troy Rice's district. Mr. Rice himself

told Mr. Hensley that he was not getting his money’s worth

out of an “aged Ferrari” and younger employees were treated

differently under substantially similar circumstances.

Following the McDennell Douglas scheme, if Home

Depot articulates a legitimate reason for its adverse conduct,

the Plaintiffs must show that the reason is a pretext for

discrimination. Plaintiffs have carefully set forth all of the

facts in this brief which demonstrate pretext. In every

instance, Plaintiffs have demonstrated (or at least raised a

fact issue) that Home Depot's explanation is, as the Supreme

Court stated in Reeves, “unworthy of credence.”

With regard to the claim related to Mickey Flippin,

Magistrate Sanderson made several findings in which he

either ignored the evidence presented by Mr. Flippin’s estate

or weighed the evidence in favor of Home Depot. He found

that “Flippen (sic) failed to properly verify the store safe...,”

that “Flippen, (sic) who was assigned the responsibility for

closing the store left before-store closing procedures were

19

completed,” and that “Flippen (sic) left the store premises

early to attend a family function.” Appellant offered

substantial summary judgment evidence directly

controverting the validity of such findings, including evidence

that the information containod in Mr Rico's affidewit relied

upon by Magistrate Sanderson is inaccurate.

Despite the fact that the Plaintiff demonstrated that

. Home Depot’s summary judgment evidence in the form of

Mr. Rice’s affidavit is inaccurate and untrue, Magistrate

Sanderson cited the affidavit as the evidence allegedly

supporting his finding. Furthermore, Plaintiff offered

evidence that Home Depot’s reason for his reprimand was

false. Not once was Plaintiff's evidence cited in Magistrate

Sanderson’s opinion.

With regard to Magistrate Sanderson's finding about

the store not being ready for business, Plaintiff offered

substantial summary judgment evidence contravening thus

finding and this evidence was never addressed by Magistrate

Sanderson.

With regard to Magistrate Sanderson's finding about

Mr. Flippin leaving the store to attend a function, Plaintiff

offered substantial summary judgment evidence

contravening this finding. Again, Magistrate Sanderson cited

only to Home Depot's evidence and not to Plaintiff's

controverting evidence (which is the evidence that must be

taken as true for purposes of evaluating Home Depot's

motion).

Additionally, Plaintiff presented direct evidence of

discrimination. There is evidence that similarly situated

employees were treated differently, providing direct

evidence of discrimination, also never addressed by the

considered in reviewing the fourth prong of the prime facie

case. However, none of the reviewing courts considered (us

evidence.

20

Magistrate Sanderson further failed to address the

substantial evidence of pretext offered by Steve Winslow and

found that “the investigation nor the demotion [of Mr.

Winslow] contain even a scintilla of evidence that they took

place on account of Winslow's age.” Again, Magistrate

Sanderson cited only to Home Depot's evidence and not at

all to any of Mr. Winslow’s substantial evidence, including

the evidence that Mr. Winslow was treated very differently

by Mr. Rice than the younger assistant managers. Magistrate

Sanderson simply dismisses Mr. Winslow's testimony and

does not even address the compelling testimony of Mr.

Winslow's manager, Terry Bright. All reasonable inferences

from such evidence must be drawn in favor of the Plaintiff

and the court cannot weigh the evidence in favor of Home

Depot. It is clear that there are substantial fact issues to be

presented to the jury.

Il. THE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS

IN REFUSING TO ACKNOWLEDGE AGE RELATED COMMENTS

AS EVIDENCE OF DISCRIMINATION AS TO CALL FOR AN

EXERCISE OF THIS COURT'S SUPERVISORY POWER.

Magistrate Sanderson refused to consider Mr. Rice's

statement to Mr. Hensley that he was an “aged Ferrari”

(offered as a criticism during his performance review) as

evidence of age based animus. In a lengthy footnote,

Magistrate Sanderson concludes that because Ferraris are not

mass produced, and because they are “vintage” automobiles,

“Rice was implying that he was a high-priced employee.”

(Report and Recommendation of United States Magistrate

Judge, App. p. 16a - 18a, n. 4). However, there is NO evidence

that Mr. Rice was implying that Mr. Hensley was a “high-

priced employee” other than Magistrate Sanderson's

conclusion after he made his Ferrari analysis. Furthermore,

there was no evidence that Mr. Rice knew that Ferraris were

not mass produced or considered them “vintage”

automobiles. In Russell v. McKinney Hosp. Venture, 235

F.3d 219 (5" Cir. 2000), the court made it clear that “viewing

21

{age related] remarks that a jury could find to evidence

animus through the harsh lens employed by the [Fifth Circuit

prior to Reeves] is unacceptable.” Jd. at 226. What weight is

to be given to Mr. Rice’s age comment should be left to the

jury. For summary judgment purposes, it is direct evidence

of age discrimination.

IV. THE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS

IN MISAPPLYING THE LAW REGARDING CONSTRUCTIVE

DISCHARGE AS TO CALL FOR AN EXERCISE OF THIS

COURT'S SUPERVISORY POWER.

The “discharge” requirement of an ADEA case can be

satisfied if an employee's resignation can be considered the

functional equivalent of a firing—a “constructive discharge”.

To show constructive discharge, an employee may establish

that the employer made working conditions so intolerable

that a reasonable employee would feel compelled to resign.

Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5" Cir.

1994).

With respect to Danny Hensley, Magistrate Sanderson

found that he was not constructively discharged. However,

the evidence clearly shows that Mr. Hensley was being

subjected to repeated harassment. He was being written up

for every possible infraction that the Defendant could dream

up—at least once per month. The write up for the allegation

by a customer that some unidentified man with a hearing aid

was rude to him aptly demonstrates the hostile atmosphere

toward Mr. Hensley. As reflected in the extensive facts

provided, Mr. Rice was out to make Mr. Hensley’s life

miserable. Evidence that an employer created an

uncomfortable and hostile work environment supports a

claim of constructive discharge. Glass v. Petro-Tex Chem.

Corp. , 757 F.2d 1554 (5" Cir. 1985). Mr. Hensley has easily

raised a fact issue with respect to constructive discharge.

22

The cases relied upon by Magistrate Sanderson (and

cited by Home Depot) regarding Mr. Hensley are easily

distinguishable. In Jenkins v, State of La. Dept. of

Corrections, 874 F.2d 992, 996 (5" Cir. 1989), the court was

reviewing a religious discrimination case and basically

determined that if, in fact, the plaintiff's version of events was

true, there would have been a constructive discharge, but

that the trial court chose to accept defendant’s version of

events that the plaintiff was disciplined for falsifying a

medical excuse. In Boze v. Branstetter, 912 F.2d 801, 805 (5"

Cir. 1990), the court simply found no constructive discharge

based on one negative performance review. Neither of these

circumstances are present in the facts before this Court,

where Mr. Hensley was written up repeatedly and unjustly,

given his worst performance review, called an “aged Ferrari,”

told he was not worth his salary, and was extremely anxious

on a daily basis about what they were going to come up with

to fire him. There is sufficient evidence to raise a fact issue

on this matter and the Defendant’s motion should be denied.

CONCLUSION

For all of the reasons identified herein, a writ of

certiorari should issue to resolve the issue of the standard of

review to apply to age discrimination cases, to address the

misapplication of the law below and, ultimately to reverse the

order of the United States Court of Appeals for the Fifth

Circuit, remand the case for trial and order the Defendant to

pay the costs of appeal.

Respectfully submitted,

Susan E. Hutchison

Lewis & Hutchison, P.C.

1320 S. University Drive

Suite 100

Fort Worth, TX 76107

817-336-5533

Fax No. 817-336-9005

la

(Any footnotes trail end of each document)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10551

Summary Calendar

DANNY HENSLEY; STEVE P. WINSLOW;

VIRGINIA FLIPPIN, on behalf of

The estate of Lucian Doyle Flippin,

Plaintiffs-Appellants,

Versus

HOME DEPOT, U:S.A., Inc.,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

USDC No. 3:98-CV-646-M

Filed October 26, 2001

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit

Judges.

-

PER CURIAM:

Plaintiffs Danny Hensley, Steve P. Winslow, and

VirginiaFlippin, on behalf of the estate of her late husband,

LucianDoyle (Mickey) Flippin, appeal the summary judgment

dismissal oftheir claims under the Age Discrimination in

Employment Act("ADEA"), 29 U.S.C. § 623(a), against Home

Depot, U.S.A, Inc.("Home Depot"). The district court

dismissed the claims ofHensley and Winslow, who resigned

2a

their positions with HomeDepot, on the ground that they had

failed to adduce evidence sufficient for a reasonable jury to

find that they were constructively discharged. The district

court dismissed Flippin's claim for failure to establish the

existence of a genuine issue of material fact on which a jury

could find that the legitimate, nondiscriminatory reason

articulated by Home Depot for Flippin's discharge was a

pretext for age discrimination.

The plaintiffs first contend that the district court

improperly applied the evidentiary framework of

McDonnell-Douglas v. Green, 411 U.S. 792 (1973), to this

ADEA matter. Although Mconnell-Douglas was a racial

discrimination case decided under Title VII of the Civil Rights

Act of 1964, we have endorsed its burden-shifting approach

as “an evidentiary procedure that allocates the burden of

production and establishes an orderly presentation of proof."

Bodenheimer v. P.P.G, Indus. Inc,, 5 F.3d 955, 957 (5th Cir.

1993). It has long been a staple of our AREA jurisprudence.

See Jackson v, Sears Roebuck & Co,, 648 F.2d 225, 230 (5th

Cir. Unit B June 1981) (‘It is well settled that the analysis

articulated in [McDonnell-Douglas] is applicable to ADEA

cases."). We find no error in the district court's utilization of

this useful and time-tested framework.

Turning to the district court's resolution-of the

plaintiffs' claims, we perceive error only to the extent that the

district court dismissed Winslow's claim based on a failure to

make a showing of constructive discharge. Winslow made the

requisite showing on this issue, albeit by a narrow margin.

However, after a thorough review of the record and the

briefs, we affirm the dismissal of Winslow's claim on the

alternative ground noted by the district court, as Winslow

failed to make a prima facie showing that his demotion was

motivated by age discrimination. As to Hensley and Flippin,

we affirm the judgment below essentially for the reasons

articulated by the district court.

AFFIRMED.

3a

Footnotes

Pursuant to 5" Cir. R. 47.5, the court has determined

that this opinion should not be published and is not

precedent except under the limited circumstances set forth in

5" Cir. R. 47.5.4.

4a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DANNY HENSLEY, et al.,

Plaintiffs,

Civil Action

No. 3:98-0646-M

Vv.

HOME DEPOT USA, INC.

Defendant.

Or OP? Or (2 (2? ? > ? (9

JUDGMENT

The Court has entered its Findings in the case,

accepting the Findings and Conclusions of theMagistrate

Judge. Therefore,

It is ORDERED, ADJUDGED and DECREED that

all of Plaintiffs' claims areDISMISSED with prejudice.

It is further ORDERED that the Clerk shall transmit a

true copy of this Judgment, togetherwith a true copy of the

Order Accepting the Findings, Conclusions, and

Recommendation of the United States Magistrate Judge, to

the parties.

SIGNED this 26 day of March, 2001.

s/Barbara M.G, Lynn

BARBARA M..G. LYNN

UNITED STATES DISTRICT JUDGE

5a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DANNY HENSLEY, et al., ‘

Plaintiffs,

v. Civil Action

§ No. 3:98-0646-M

HOME DEPOT USA, INC.

Defendant. ; é

After making an independent review of the pleadings,

files and records in this case, and the Findings, Conclusions

and Recommendation of the United States Magistrate Judge,

the Court finds that the Findings and Conclusions of the

Magistrate Judge are correct and they are accepted as the

Findings and Conclusions of the Court, with one exception.

Based on Brown v. Kinney Shoe Corp., 237 F. 3d 556 (5th

Cir. Jan. 15, 2001), the Court concludes that Mr. Winslow was

not constructively discharged, but rather resigned, and thus

cannot sue under the ADEA. If he had been constructively

discharged, the Court accepts the analysis and

determinations of the Magistrate Judge.

IT IS, THEREFORE, ORDERED that the Findings,

Conclusions and Recommendation of the United States

Magistrate Judge are accepted, except as noted above.

SO ORDERED this 26, day of March, 2001.

s/Barbara M.G. Lynn _

BARBARA M.G. LYNN

UNITED STATES DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

6a

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

STEVE WINSLOW,

VIRGINIA FLIPPIN

ON BEHALF OF THE ESTATE

OF LUCIAN DOYLE FLIPPIN

And DANNY HENSLEY

3-98-CV-646-M

¥

CO? (OP? COP? CO? (0? CO? eon CO? CO?

HOME DEPOT U.S.A., INC.

Filed Dec. 1, 2000

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court's orders of reference,

on October 17, 2000, came on to be heard Defendant's first

and second motions for summary judgment filed on July 1,

1999, and August 13, 1999, respectively, and having

considered the relevant pleadings, including the parties'

summary judgment appendices and the statements and

arguments of the attorneys for the parties, the magistrate

judge makes the following findings, conclusions and

recommendations

Summary judgment standards Summary judgment is

proper when pleadings and the evidence on file, along with

any affidavits, show that there is no genuine issue of material

fact and that the moving party is entitled to a judgment as a

matter of law Rule 56(c), Federal Rules of Civil Procedure.

The party moving for summary judgment bears the burden of

producing evidence to establish that there is no genuine issue

of material fact with regard to an essential element of the

nonmovant's case. Anderson v. Liberty Lobby, Inc., 477 US

242, 248, 106 S Ct 2505, 2510 (1986) Once the movant

produces such evidence, the burden shifts to the nonmovant

to produce evidence establishing each of the challenged

elements of his case for which he will have the burden of

proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

7a

S.Ct. 2548, 2552 (1986). To meet this burden the nonmovant

must set forth specific facts which demonstrate that there is a

genuine issue for trial. j j

Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56

(1986). If the nonmovant fails to meet its burden, summary

judgment in favor of the movant is appropriate. Topalian v

Ehrman, 954 F.2d 1125, 1132 (5th Cir) cert denied 506 U.S.

825, 113 S Ct 82 (1992).

The applicable law Each Plaintiff has sued Defendant

for violations of the Age Discrimination in Employment Act

(ADEA). Initially the parties join issue on whether the

McDonnell Douglas’ burden shifting scheme (the "prima

facie" showing) is applicable to AREA actions. Plaintiffs note

that on two occasions the Supreme Court declined to address

this issue. In O'Connor v Consolidated Coin Caterers Corp

517 U.S. 308, 311, 116 S Ct 1307, 1310 (1996), the Court

observed that it had never had occasion to decide whether

the McDonnell Douglas evidentiary framework applied to -

ADEA cases, but assumed that it did because the parties did

not contest this issue. Similarly in Reeves v Sanderson

Plumbing Products, Inc, _U S. _, 120 S Ct. 2097, 2105 (2000),

the Court again applied the McDonnell Douglas framework to

that AREA case, because neither party argued otherwise.

It hardly follows that the fact that the issue has not

been decided by the Supreme Court warrants a finding that

the McDonnell Douglas burden-shifting does not apply in

ADEA cases. Conspicuous by its absence is any suggestion

by Plaintiffs of an alternate scheme under which to analyze

summary judgment motions in the context of ADEA cases.

Moreover, this court does not write on a “clean slate”

— as it were — on this issue, being bound to apply the law of

the Fifth Circuit. The Fifth Circuit has repeatedly applied the

analysis to ADEA cases, including the

Reeves case, 197 F.3d 688, 691-92 (5" Cir. 1999), which was

ultimately reversed by the Supreme Court on other grounds.

See also e.g. Fields v J C Penney Co Inc., 968 F 2d 333, 536 (5"

Cir. 1992) (rehearing denied September 21, 1992), Bienkowski

v American Airlines, 851 F.2d 1503, 1504-05 (5" Cir

8a

1988),1_indsev v Drive Corg , 987 F.2d 324, 326 (5" Cir 1993)

(rehearing denied May 21, 1993).

The parties also join issue on the elements which an

AREA plaintiff must demonstrate in establishing a prima facie

case of discrimination. In O'Connor v Consolidated Coin

Caterers Corp., supra, the Supreme Court addressed the

McDonnell Douglas framework as applied by the Fourth

Circuit in the context of an ADEA claim. The Fourth Circuit

held that in order to establish a prima facie case of age

discrimination, an ADEA plaintiff must show that following

his discharge he was replaced by some one of comparable

qualifications outside the protected class, i.e. a person under

the age of 40 O'Connor v Consolidated Coin Caterers Corp.,

56 F.3d 542, 546 (4'° Cir 1995)

In reversing the lower court, the Supreme Court held

that replacement of an individual outside the protected class

was not an element of an ADEA prima facie showing. 517 U S

at 311-312 However, the Court did not hold that the age of a

replacement employee was irrelevant. Specifically the Court

stated

"Because the ADEA prohibits discrimination on the

basis of age ... the fact that a replacement is

Substantially younger than the plaintiff is a far more

reliable indicator of age discrimination than is the fact

that the plaintiff was replaced by someone outside the

protected class." (Emphasis added) Id. 517 U S at 313,

116 S.Ct at 1310

Defendant argues that this parting observation of the

Supreme Court merely ameliorates the standard necessary to

meet the requirements of the fourth element of the Fourth

Circuit's ADEA standards and adopts a minimum standard

describing the fourth element of the McDonnell Douglas

rubric. The magistrate disagrees with this interpretation.

This sentence, appearing in the Court's opinion, is essentially

dicta and merely makes an observation on the relative weight

of one indicium of discrimination.

9a

There is a fourth element of a plaintiff's priuna facie

showing, but the Fifth Circuit standard is significantly more

flexible and less mechanical than the discredited standard

previously applied by the Fourth Circuit, to wit. that the

plaintiff was either (1) replaced by someone outside the

protected class, (2) was replaced by someone younger; or (3)

otherwise discharged because of his age. See e.g

Bodenheimerv PPG Industries. Inc., 5 F.3d 955, 957 (5°° Cir

1993) citing Fields v. J C Penney Co , 968E 2d 533, 536 (5th

Cir. 1992).

The parties. Although each Plaintiff was a former

employee of Defendant and each is represented by the same

counsel, in addressing the merits of Defendant's motion for

summary judgment the court looks to the competent

evidence with respect to each Plaintiff's individual claims.

Lucian Doyle (Mickey) Flippin Mr. Flippin died not

long after his termination as an employee of Defendant and

his ADEA claims are being pursued by his widow on behalf of

his estate.

In seeking summary judgment Defendant does not

argue that Flippin has failed to meet his initial burden of

establishing the elements of a prima facie case of age

discrimination. See Fields v J. C Penney Co , supra, 968 F 2d

at 536. Rather it joins issue at the next step in the McDonnell

Douglas analysis, to wit that Defendant has proffered a

legitimate, non-discriminatory reason for terminating Flippin.

See e.g., Rhodes v, Guiberson Oil Tools, 75 F.3d 989, 992-993

(5" Cir. 1996).

In 1995 Flippin was demoted from the position of

store manager to that of assistant store manager’. During the

time period relevant to Flippin’s ADEA claim he was under

the supervision of store manager, Steve Hedlund, who in turn

reported to Troy Rice, the district manager.

On September 8, 1996, Flippen failed to properly

verify the store safe. As explained in the affidavit of Troy Rice

(Defendant's Appendix (HD) 130, p.9) this was an important

function to be performed and failure to accurately do so

10a

violated Defendant's policy. Thereafter Mr Hedlund gave

Flippen a written deficiency notice. (Id. at 91).

On September 23, 1996, Flippen, who was assigned

the responsibility for closing the store, left before store

closing procedures were completed This again contravened

Defendant's policy. See Rice affidavit at HD 130, p.9. On the

following day Steve Hedlund gave Flippen a written notice

and advised him that it was a final warning with respect to

company procedures (Id. 139).

On October 15, 1996, Flippen left the store premises

early to attend a family function. Although Flippen apparently

told another manager to "cover" for him, at the time Flippen

left the store he was aware that the other manager had gone

home sick. On October 16, 1996, he was again given a written

no-ice based upon his failure to receive Hedlund's approval

to change his working hours and in leaving the store,

knowing that there was no one to "cover" for him. Id. 92. As a

result of this third violation of company policy, Flippen was

terminated on October 16, 1996, effective on October 27,

1996, based upon poor job performance Id. 142.

Defendant's summary judgment evidence clearly

satisfies an employer's production burden of articulating a

legitimate, nondiscriminatory reason for its action in

terminating Flippen's employment In order to avoid the

granting of summary judgment in Defendant's favor Flippen

must in turn present evidence on which a fact finder could

determine that the reasons advanced by Defendant are

merely a pretext for age discrimination.

Undoubtedly the fact that Mickey Flippen, the alleged

victim of age discrimination, is deceased and is therefore

unavailable to present competent evidence tending to

undermine Defendant's stated reasons for his termination

places a heavy burden on his estate's ability to attack

Defendant's position. However, this fact does not relieve the

burden imposed under the McDonnell Douglas framework.

Although Flippen's counsel suggests that the stated

reasons in the written performance memoranda may not

accurately reflect the actual facts, no evidence is presented

lla

which would support this supposition Likewise the testiescry

of his widow is devoid of any evidence that Mickey Flipper »

termination was motivated by his age - 45 years - at Uke Gene

of his termination. See HD at 78-78a, 81-82, 85-88.

The Estate of Lucian Doyle Flippen has failed to

establish the existence of any genuine issue of fact om whech

a jury could find that Defendant terminated Mickey Flipper »

employment based upon his age, and therefore summary

judgment should be granted in Defendant's favor om the

estate's age discrimination claim.

Steve Winslow. Unlike Mickey Pluppen, Mr Wiretow

was not terminated by Defendant, but rather Winalow

resigned from Defendant's employ in the summer of 197

light of his resignation Defendant argues that Winsiow hae se

standing to sue under the ADEA. In turn Winslow argues Gus

he was "constructively discharged” as a result of the cowree of

action taken by Defendant.

In order to prove “constructive discharge’ am

aggrieved former employee must show that the eaupioyer

made his working conditions so intolerable (ut 4 reascraite

employee would feel compelled to resign McKethan » Tomas

Farm; Bureau, 996 F .2d 734, 740-41 (Sth Cir), retearing

denied 3 F.3d 441 (5° Cir. 1993) cert. denied 510 U.S. Noe,

114 S.Ct. 694 (1994). In Barrow v. New Orieans SS Agee §°

F.3d 292, 297 (5° Cir. 1904), the court noted sewer factors

which inform the question of whether an employer's leering

was reasonable, and further observed thal nome wae

determinative and that such a determination Gepereis eper

the facts in each case. By example, demotion of am emgieyer

standing alone is insufficient to establish « cometrective

discharge. Jurgens - vy EEOC, 908 F.2d S86, 208 (8° Cie

1990).

The evidence with respect to Winshow » eepitoymene

reflects that in 1996 - at the age of 4) the wae empioped ae a

assistant manager in the outside garden Gepartowens Prior te

that time he had - become a Master ( ertufled Yarvery

Professional and was then pursuing 4 master's degree &

landscape architecture. On November 12. [00 he wae

—— mmmamamaa aaa i RRR Aa i

12a

demoted to a sales associate position and re-assignedto a

different store in the plumbing department.

Winslow presented evidence that at the time of his

demotion the district manager, Troy Rice,told him that they

would come up with a "game plan" for his future with the

company. Winslow further related that he made numerous

attempts to contact Rice to discuss his future, but without

success. Ultimately in conversations with his store manager,

he was informed that there was no "game plan", after which

he resigned to accept new employment some 8 to 10 months

after his demotion.

Although the issue is a close one, I am of the opinion

that a reasonable jury could find, based upon the above, that

Winslow was constructively discharged, particularly where

Defendant's management was well aware of his educational

and employment background in horticulture, but upon his

demotion transferred him to an entirely different department

for which he had no background or training, coupled with the

fact that although his future with the company was to be

revisited, Defendant's management never carried through.

‘Having determined that Defendant's standing

argument is unavailing, the magistrate judge next considers

Winslow's claims under the McDonnell Douglas framework.

In light of the foregoing, Winslow has established the first

three elements of a prima facie showing.

With regard to the fourth element Winslow was either

replaced by Stuart Lazarus, six years Winslow's senior (HD

129, 132, 127, 95) or his position was never filled. See

Plaintiffs' brief filed on June 16, 2000, at page 11. Under either

alternative, ‘n order to satisfy the fourth element Winslow

must show that he was "otherwise discharged" because of his

age.

Winslow was informed of his demotion on November

12, 1996, and was advised that his management style was

deficient based upon complaints made by subordinates The

record reflects at least two complaints, which were made

with regard to his treatment of subordinates. See HD 147 and

148. As follow-ups to these complaints, made by persons

13a

identified only by discrete numbers, Terri Evert and Tammy

Eskew spoke with several sales associates at Winslow's store,

who reported similar incidents involving him. Id. 127-127a.

In his portion of Plaintiffs' response Winslow claims

that he did not threaten, berate or abuse any co-employees

(Plaintiffs' response filed on June 16, 2000), thus suggesting

that the complaints and the investigation were either false or

exaggerated. However, it must be remembered that a federal

court has no jurisdiction to address or second-guess every

bad business decision relating to employment

760 F 2d 633, 647 (5'° Cir.

1985) "The ADEA cannot protect older employees from

erroneous or even arbitrary personnel decisions, but only

from decisions which are unlawfully motivated." Bi

j 851 F 2d 1503, 1508 (5°° Cir. 198)

(Emphasis added).

Thus, although the investigation with respect to

Winslow's management techniques may have been

incomplete, inadequate, or even inaccurate, the fact remains

that neither the complaints, the investigation nor the

demotion contain even a scintilla of evidence that they took

place on account of Winslow's age. Therefore, Winslow has

failed to make a prima facie showing that his demotion was

motivated by his age, and Defendant is entitled to summary

judgment on his ADEA clam.

Danny Henslev. Like Steve Winslow, Mr. Hensley

resigned his employment. with Defendant and issue is joined

on whether there is a genuine issue of fact as to whether he

was "constructively discharged."

Hensley was an assistant manager over the lumber

department at the store managed by Steve Hedlund. From

1994 through February 1996 Hensley received performance

ratings of either"consistently meets expectations" or "often

exceeds expectations" In August 1996 Troy Rice became

district manager over the store where Hensley worked

Between October 28, 1996 and December 7, 1996,

Hedlund gave three written notices to Hensley regarding

performance deficiencies’. (See Plaintiffs' Appendix at 271,

l4a

273 and 275). Neither the written reports of these incidents,

nor any other summary judgment evidence reflects that any

adverse action was taken against Hensley based upon these

reported deficiencies.

On February 7, 1997, Troy Rice met with Hensley to

make a regular review of Hensley’s performance. See

Plaintiff's Appendix at 277-280. As reflected in the written

report, a number of areas for improvement were noted, and

in most individual categories Hensley received a “2” and he

was given an overall rating of “2” signifying “Improvement

needed. Meets some, but does not consistently meet all job

expectations.” Nothing related in the performance evaluation

hints of any age animus on the part of Mr. Rice".

On February 26, 1997, Rice gave a written

performance deficiency notice based upon two incidents of

customer complaints. See HD 143 and Plaintiffs' Appendix at

282. Hensley denied any involvement in either instance.

Following this incident report Hensley continued to be

employed in his position of assistant store manager until his

resignation on April 12, 1997.

In order to demonstrate that his resignation was not

an independent intervening event, cutting off his right to

pursue his ADEA claim against Defendant’ Hensley must

show that a reasonable jury could find that he was

“constructively discharged", to wit that a genuine issue of fact

is presented. In determining whether a colorable basis for a

“constructive discharge" exists with respect to Hensley, the

court applies the same law discussed with respect to Steve

Winslow's claim. Under the summary judgment evidence

before the court it is readily apparent that the only arguable

Barrow factor present in Hensley's case is alleged badgering

or harassment by the employer to encourage the employee's

resignation.

In assessing this factor there must be sufficient

evidence from which a jury could conclude that Hensley's

working conditions were so intolerable that a reasonable

employee would be compelled to resign’. Hensley cannot

make this showing.

15a

Although it does not appear in the summary judgment

that Hensley ever received a written performance deficiency

notice prior to October 28, 1996, four deficiency reports

within the last five months ofhis employment with Defendant

hardly sufffice to establish a persistent pattern of badgering

and harassment, particularly where no action of any kind was

taken against him arid where the author of three of the

incident reports was the same manager who in 1996 twice

rated him favorably in performance evaluations. It is equally

noteworthy that the Fifth Circuit has refused to find

constructive discharge based upon reprimands, See Jenkins v

State of Louisiana Department of Corrections, 874 F.2d 992,

996 (5" Cir. 1989) 493 U S 1059, 110 S CT, 871 (1990), or based

upon a poor performance evaluation and placing an employee

on probation, See Boze v Branstetter. 912 F.2d 801, 805 (5°"

Cir. 1990). It is likewise relevant that although Troy Rice

wrote him up on February 26, 1997, for complaints which

Hensley disputed, on March 15, 1997, as a follow-up to his

February 7, 1997, performance review which noted areas for

improvement, Rice wrote that-Hensley. was meeting the goals

by being "consistent in stock", and "leading by example"

(Plaintiffs' Appendix at 281).

Although Hensley may have subjectively believed that

he was unlikely to advance while Mr. Rice was his district

manager, which may in turn have influenced his decision to

resign, nothing in the conduct of Mr. Rice or Mr. Hedlund was

of such character that a reasonable jury could find that

Hensley was compelled to leave Defendant's employ.

Therefore Defendant's motion for summary judgment against

him should be granted

RECOMMENDATION

For the foregoing reasons it is recommended that the

District Court enter its order granting Defendant's motion for

summary judgment against Steve Winslow, the Estate of

Lucian Doyle Flippin and Danny Hensley and that judgment

be entered disnussing Plaintiffs' ADEA claims against

Defendant with prejudice.

l6a

A copy of this recommendation shall be transmitted

to counsel for the parties.

s/Wm. F. Sanderson, Jr.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this

recommendation, you are hereby notified that you must file

your written objections within ten days after being served

with a copy of this recommendation. Pursuant To Douglass v

United Serv, Auto Assn 79 F.3d 1415 (5th Cir. 1996) (en banc)

a party's failureto file written objections to these proposed

findings of fact and conclusions of law within such ten day

period may bar a de novo determination by the district judge

of any finding of fact or conclusion of law and shall bar such

party, except upon grounds of plain error, from attacking on

appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court in

implementation thereof, the subject cause has been referred

to the United States magistrate judge.

Footnotes

‘ - McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,

93 S. Ct. 1817, 1824 (1973).

: Flippin was demoted for three consecutive

unacceptable inventories

: Prior to the October 28, 1996, notice Hedlund gave

Hensley an annual review rating of “consistently meets

expectations” on February 19, 1996 (Plaintiffs’ Appendix at

256-268) and a mid-year review rating of “solid performance.

Meets most job expectations” on August 29, 1996 (Plaintiffs’

Appendix at 269-70).

' In his deposition given on November 13, 1998

(Plaintiffs’ Appendix, Exhibit 5 at 174) Hensley related that in

the course of Rice’s performance evaluation conducted some

21 months earlier, Rice referred to him as an aged Ferrari and

17a

that he was paying for an aged Ferrari and was not getting it

(HD 50-52, Plaintiffs’ Appendix 173).

Relying on the Supreme Court’s decision in Reeves v.

Sanderson Plumbing Products, Inc., ___ U.S. ___, 120. Ct.

2097 (2000), Hensley suggests that this remark is is some

evidence of an age bias held by Rice towards him. The

Reeves decision hardly evinces a sea change in employment

discrimination law. Indeed, a subsequent opinion of the Fifth

Circuit has opined that the panel opinion in Reeves, 197 F.3d

688 (5" Cir. 1999), simply failed to apply the pre-existing law

of this circuit. See Vadie v. Mississippi State University, 218

F.3d 365, 373 at n. 23 (5" Cir. 2000) rehearing and suggestion

for rehearing en banc denied, __ F.3d __ (August 21, 2000),

pet. for cert. Filed November 17, 2000 (No. 00-806).

In Reeves evidence was presented that the plaintiff's

immediate supervisor told him that he “was so old [he] must

have come over on the Mayflower” and that he “was too

damn old to do [his] job” 120 S. Ct. at 2110. Further, although

the defendant controverted-Reeves’s evidence that the

supervisor was responsible for his termination it was

uncontroverted that the supervisor was the spouse of the

defendant’s president, whom defendant claimed was the

person that fired Reeves. Id. At 2111.

In reversing the Fifth Circuit’s panel opinion, the

Supreme Court upheld the district court’s ruling allowing the

jury to consider this evidence and reinstated the jury’s verdict

in Reeves’s favor. However, the Court did not disturb this

circuit's law that “stray remarks” are insufficient to

demonstrate an employer’s alleged discriminatory intent. See

Gurbie v Tifco Industries, 941 F.2d 374, 378-79 (5" Cir. 1991)

cert. denied 503 U.S. 908, 112 S. Ct. 1267 (1992).

Moreover, no reasonable jury could find that the

statement attributed to Rice evidenced age bias on his part.

Rice did not refer to Hensley merely as an old car, but as an

“aged Ferrari”. The Ferrari automobile does not manufacture

cars On a mass production basis. Rather, the company

produces only a limited number of passenger vehicles per

year, involving a great amount of handcrafting. As a result of

the limited production, a new Ferrari commands a sales price

18a

several times greater than even mass-produced luxury

vehicles. Further, unlike mass-produced vehicles, because of

their limited number and status as vintage automobiles, the

prices paid for older Ferraris are several times greater than

the original sales prices. Thus in referring to Hensley as an

“aged Ferrari”, Rice was implying that he was a high-priced

employee. Further, he also opined that Defendant was not

receiving commensurate value in observing that Defendant

was paying for and aged Ferrari and not getting it. In context

this is wholly consistent with the fact that on the same

occasion Rice evaluated Hensley’s Performance as needing

improvement.

Finally, it is noteworthy that while the plaintiff in

Reeves was involuntarily terminated, Hensley continued to

work for Defendant for an additional two months after this

evaluation before tendering his resignation.

- Alternatively, in order to satisfy the first element of a

prima facie showing of age discrimination Hensley must

show that he was discharged or suffered some other

actionable adverse action with respect to this employment.

Fields v. J.C. Penney, Co., supra, 968 F.2d at 536; See also

Marrem v. Eastman Kodak Co., 104 F.3d 702, 707 (5" Cir.

1997), cert. denied 522 U.S. 932, 118 S. Ct. 336 (1997).

; This test is objective. The question is not whether

Hensley felt compelled to resign, but whether a reasonable

employee would have felt so compelled. Guthrie v. J.C.

Penney Co., Inc., 803 F.2d 202, 207 (5" Cir. 1986).