NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0675n.06
FILED
No. 10-6512 Sep 14, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LINDA EPPS, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
FEDEX SERVICES, ) DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
)
)
BEFORE: COLE, ROGERS, and GRIFFIN, Circuit Judges.
ROGERS, Circuit Judge. Plaintiff Linda Epps appeals from the district court’s grant of
summary judgment to FedEx Services in her suit alleging race discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Epps claims that the district court
erred in three ways: ruling that Epps’s negative performance review could not constitute an adverse
employment action, analyzing her case under the reduction-in-force framework, and finding that she
had demonstrated no evidence of pretext with regard to FedEx’s decision. Epps’s negative
performance review did not constitute an adverse employment action, and it is unnecessary to
address the issue of the reduction-in-force framework because Epps did not rebut FedEx’s legitimate,
nondiscriminatory reason for her demotion. Therefore, the district court properly granted summary
judgment in favor of FedEx.
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Epps, who is African-American, joined FedEx as a computer programmer in 1988 and
worked in the Orlando, Florida office. Following various promotions, in September 2005 Epps was
hired as a Manager of Information Technologies (IT Manager) within FedEx’s Information
Technologies Express Solutions PM organization. She moved to Memphis, Tennessee for the new
position. Epps was hired by and reported to Keith Yarmowich, who was then the director of IT. The
IT Manager position required Epps to manage one project, known as the Managed Resource Services
Office (“MRSO”) project.
Yarmowich completed a performance review of Epps in July 2006. Her overall rating was
“Achieved Expectations,” but the review identified several areas in which Epps could improve and
made clear that such improvement was expected. Yarmowich was then transferred to another
organization within FedEx, and Mike Werner replaced him as Director of IT in October 2006.
In November 2006, a corporate reorganization brought a new manager, Peggy Black, into the
Express Solutions PM group. Black, who is Caucasian, carried over four projects and one initiative
from her prior organization. Black, Epps, and two other managers—Ginger Haynes and David
McDaniels—reported to Werner. Shortly after Black joined the group, Werner chose to eliminate
Epps’s position and transfer all of her management duties to Black. Epps was responsible for
bringing Black up to speed on the MRSO project.
Epps was told that her position was being eliminated as part of a strategic business decision,
and Werner testified in deposition that there was significant pressure on management to reduce costs.
After Werner informed Epps that her position was being eliminated, Epps received her mid-year
evaluation for fiscal year 2007. The evaluation was completed by Yarmowich, rather than Werner,
because Yarmowich had worked with Epps during the period in question. The mid-year evaluation
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gave Epps an overall rating of “Needs Improvement.” Epps contested the rating through FedEx’s
internal complaint procedures, and the overall evaluation was eventually revised to “Achieved
Expectations.”
In the months following the elimination of the MRSO manager position, Werner and Human
Resources helped Epps to locate open management positions in other groups, but Epps did not
receive a new management position. Werner also offered Epps a non-management job within his
group. This position, Business Application Advisor, was part of the MRSO team, and required that
Epps report to Black. Epps accepted the application advisor job and continues in this position at
FedEx. Epps’s salary was stepped down gradually over an eighteen-month period. Epps requested
that her salary be frozen indefinitely at the management level. Werner considered this request and
floated it to his supervisor, but it was ultimately rejected.
Epps filed suit in Tennessee Chancery court alleging race discrimination, sex discrimination,
age discrimination, and negligent and intentional infliction of emotional distress. FedEx removed
the case to federal court. Epps stipulated to voluntary dismissal of her age discrimination claim,
R.18, and the claim was dismissed, R.19. The court subsequently granted FedEx’s 12(b)(6) motion,
dismissing the sex discrimination and tort claims. On November 12, 2010, the district court granted
summary judgment to FedEx on Epps’s race discrimination claim. R.45. The court viewed Epps’s
demotion as part of a reduction in force (RIF) and determined that she had not satisfied the RIF
heightened pleading standard to establish a prima facie case. Epps timely appealed.
Because Epps’s mid-fiscal year 2007 review did not result in a change in position or loss of
pay, the negative performance review did not constitute an adverse employment action. See Tuttle
v. Metro. Gov’t of Nashville, 474 F.3d 307, 322 (6th Cir. 2007). In Tuttle, the plaintiff established
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a causal link between the negative performance review and her transfer and ultimate termination,
making the performance review an adverse employment action. Id. at 323. In this case, Epps has
not established any such link between Yarmowich’s evaluation and Werner’s decision to eliminate
her position; in fact, the record reflects that the performance evaluation played no part in the
decision. See R.27-4 at 45. Within one month, Epps succeeded in having the review revised,1 and
during oral argument Epps’s counsel conceded that the performance review did not affect the terms
and conditions of Epps’s employment. Therefore, the district court properly held that the mid-fiscal
year 2007 review was not an adverse employment action.
Because Epps is unable meet her burden under the third prong of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973),2 it is unnecessary to determine the reduction in force issue and thus
decide whether Epps has established a prima facie case of race discrimination. First, FedEx
proffered legitimate, nondiscriminatory reasons for Epps’s demotion. Id. at 802. Second, Epps has
not demonstrated a genuine issue of material fact with respect to whether FedEx’s proffered
nondiscriminatory justifications were “pretext designed to mask illegal discrimination.” Hein v. All
Am. Plywood Co., 232 F.3d 482, 489 (6th Cir. 2000).
1
During her deposition, Epps stated that her mid-fiscal year 2007 review was in effect on
December 20, 2006, R.27-3, Dep, at 169-70, and that her review was revised from “Needs
Improvement” to “Achieved Expectations” on January 15, 2007. Id. at 117. After January 15,
criticisms from Yarmowich were deleted and Epps signed off on the modified review on March 21,
2007. Id. at 125.
2
Under McDonnell Douglas, if the plaintiff establishes a prima facie case, an employer
may provide evidence of a legitimate alternative reason for discharge, which shifts the burden back
to the plaintiff to show the proffered reason was only a pretext. Whitfield v. Tennessee, 639 F.3d
253, 259 (6th Cir. 2011).
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FedEx has met its burden under McDonnell Douglas by providing several legitimate,
nondiscriminatory reasons for choosing Black for the consolidated position. See Johnson v. Univ.
of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000). Assigning the consolidated duties to Black
required Black to learn one new project: MRSO. In contrast, had the consolidated job been assigned
to Epps, she would have been required to learn four new projects and one initiative. Based on the
number of direct reports managed by Epps and Black prior to the demotion, it is likely that MRSO
was a larger project than any one of the projects on which Black was working. However, it appears
that Black had the larger sum total of management responsibilities, and her work covered a greater
number of discrete areas. Therefore, FedEx has provided a legitimate, nondiscriminatory
explanation that it was more efficient to assign the MRSO project to Black than to move all of
Black’s projects to Epps.
Further, Black had a longer tenure with FedEx, had more experience reporting to senior level
management, and had won two of the company’s five-star awards for excellent work. Although
Epps had a consistently positive work history with FedEx and had earned a promotion to
management, her most recent year-end evaluation had identified several areas in which improvement
was needed. Werner stated that he was focused on efficiency—not prior job performance—in
choosing who should take on the consolidated duties. However, he mentioned his awareness of
Black’s strong track record with the company, and that history further supports the business decision
to select Black over Epps for the remaining management position.
Epps has not shown a genuine issue of material fact as to whether FedEx’s proffered reasons
for the demotion were pretextual. Hein, 232 F.3d at 489. Though Epps argues that FedEx’s
justifications “had no basis in fact” and “did not actually motivate [FedEx’s] action[,]” Macy v.
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Hopkins County School Bd. of Educ., 484 F.3d 357, 366 (6th Cir. 2007), she is unable to provide
sufficient evidence to support these claims. Epps attempts to demonstrate pretext by pointing out
that the consolidated position assumed by Black was divided less than one year after Epps’s
demotion. FedEx acknowledges that the consolidated position assumed by Black no longer exists,
but explains that there is still no dedicated manager for the MRSO project. Epps’s demotion
eliminated one management position, and that position has not been reinstated. Therefore, the fact
that the business demands of FedEx required a second reorganization does not imply that the initial
consolidation was undertaken to push Epps out of management.
Epps returns to Yarmowich’s negative mid-fiscal year 2007 review to argue pretext, but this
argument is unsupported by the record. Epps’s basic claim is that because she received her first
negative evaluation in her entire tenure at FedEx just after her demotion, the review should be
viewed as an ex post attempt to justify her demotion. Epps’s year-end evaluation from 2006,
however, indicated several areas in which Yarmowich expected improvement from Epps, clearly
signaling the potential for a future negative review. In evaluating Epps’s success on the objective
“enhance employee communications and relations,” Yarmowich stated “[o]verall FY06 results were
poor but factors such as a new workforce with a new topic for the workforce made it a difficult
environment.” R.27-3, Dep. Ex. 17 at 1. Yarmowich’s evaluation of Epps’s work on the MRSO
project objectives also foreshadowed the negative mid-year review. Yarmowich wrote: “To ensure
the most effective use of the organization[’]s time on top priorities, Linda and the team will have to
refine their goals and priorities. I have asked Linda to work on this in FY07.” Id. at 3. The
indications of problem areas contained in the year-end 2006 evaluation undercut Epps’s already
tenuous argument that the mid-fiscal year 2007 performance review demonstrates pretext. In
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addition, the year-end evaluation was made before Werner even arrived in the Express Solutions PM
group, and therefore cannot be viewed as an attempt to justify his decision to consolidate
management within the group.
For these reasons, we AFFIRM the district court’s grant of summary judgment.
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