PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________ FILED
U.S. COURT OF APPEALS
No. 99-10917 ELEVENTH CIRCUIT
_______________ DEC 26, 2000
THOMAS K. KAHN
D. C. Docket No. 97-00908-1-CV-ODE CLERK
CATHY D. DURLEY,
JAMES DURLEY,
Plaintiffs-Appellants,
versus
APAC, INC.,
THEODORE J. RAPALLO,
Defendants-Appellees,
DOUGLAS C. BAIR,
Defendant.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(December 26, 2000)
Before BIRCH, FAY and KRAVITCH, Circuit Judges.
BIRCH, Circuit Judge:
This case presents the question of whether, in a Title VII sex discrimination
suit, appellant Cathy Durley presented evidence of pretext sufficient to create a
question of fact for the jury. We hold that she did, and accordingly AFFIRM IN
PART and REVERSE IN PART the district court’s grant of summary judgment.
I. BACKGROUND
Durley brought suit against her employer, APAC, Inc. (“APAC”), and her
supervisor, Theodore Rapallo, alleging sex discrimination, violation of the
Americans with Disabilities Act (“ADA”), and retaliation for the filing of an
EEOC charge.1 Durley also asserted a state law claim for intentional infliction of
emotional distress, and her husband brought a related claim for loss of consortium.
The district judge granted summary judgment to APAC and Rapallo on all counts.
Durley was employed by APAC at their Plant Services Division from 1983
until she was placed on long-term disability in 1995. Plant Services employed
between 15 and 20 people throughout the duration of Durley’s employment there.
Initially hired as a secretary, Durley was promoted to Assistant Purchasing Agent
in 1984. In that position, she shared an office with, and was supervised by,
Douglas Bair. Durley performed accounting functions and also assisted Bair with
1
Durley also sued her former supervisor, Douglas Bair, but later dismissed those claims.
2
purchasing. After her promotion, Bair made comments to Durley that women
should not perform certain kinds of work, particularly in the military. He smoked
in the office and let the ashes from his cigarettes drop on Durley’s clothes and
desk, despite his awareness that cigarette smoke aggravated Durley’s migraines.
Bair also repeated graphic stories from the news involving sexual assaults against
women and abuse of children. Durley complained to Rapallo about Bair’s
behavior. Bair was required to smoke elsewhere and the building was designated a
smoke-free environment.
In June 1993, while Rapallo was away, a confrontation occurred in which
Bair yelled at Durley and approached her in a threatening manner. Durley went
home for the day and did not return until a few days later when Rapallo was back
in the office. As a result of the confrontation, Durley’s office was moved and she
was told to report to Rapallo instead of Bair. Her title was changed to Accountant.
In 1994, Bair retired. Durley applied for his position of Purchasing Agent.
Over time, she had performed many of the job functions and acted as Purchasing
Agent during Bair’s absences from work. There was no written job description for
the position. At around the same time, APAC headquarters decided to close the
fabrication workshop at the Plant Services facility. Jeff Warnock worked in the
fabrication workshop. Rapallo decided to consolidate the two positions and hired
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Warnock to be the new Purchasing Agent. Warnock had no office or purchasing
experience and did not have a high school diploma. Durley timely filed an EEOC
complaint alleging failure to promote on the basis of gender.
At the EEOC’s request, APAC, through Rapallo, created a job description
for the Purchasing Agent position. The description emphasized the warehouse and
fabrication skills possessed by Warnock, rather than the administrative duties that
were the main functions of the job as performed by Bair prior to his retirement.
Durley was diagnosed with Chronic Fatigue Syndrome (“CFS”) in the early
1990s, which required her to take time off from work for doctor’s appointments
and sometimes caused her to be late to work. Stress aggravates the symptoms of
CFS, which may include migraines, high blood pressure and fever. After Durley
filed her EEOC charge, she felt harassed by Rapallo because of her need to be
absent due to her condition. Her pay was never docked and time off was never
refused, but Durley felt her symptoms were aggravated by workplace induced
stress.
On 7 June 1995, when APAC employees received raises, Durley only
received a cost of living increase. All other employees except Warnock received
higher raises. She amended her EEOC charge to include claims of disability
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discrimination and retaliation. Durley went on long-term disability on 8 June
1995.
II. DISCUSSION
We review the district judge’s grant of summary judgment de novo.
Chapman v. AI Transport, ___ F.3d 105, 117 (11th Cir. 2000) (en banc). Summary
judgment is only appropriate when, viewing the evidence in the light most
favorable to the non-moving party, no genuine issue of material fact exists. Id.
See also Fed.R.Civ.Pro. 56(c). We address each of Durley’s claims in turn.
A. Title VII Sex Discrimination
Durley asserts that APAC failed to promote her to the position of Purchasing
Agent because of her gender.2 A Title VII plaintiff may prove her case by direct or
circumstantial evidence. Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th
Cir. 1997). Because Durley relies on circumstantial evidence to allege
discrimination, we apply the analytical framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
2
Durley also claimed a Title VII violation for hostile work environment. This claim was
without merit, and summary judgment is affirmed without further discussion.
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248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Accordingly, Durley bears the
initial burden of establishing a prima facie case of discrimination. McDonnell
Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. In other words, she must
demonstrate that: (1) she is a member of the protected class; (2) she applied and
was qualified for the position; (3) that she was not hired; and (4) the position was
awarded to an equally or less qualified employee who was not a member of the
protected class. Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir.
2000). Once a prima facie case is established, a presumption of unlawful
discrimination is established. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S.
at 254, 101 S.Ct. at 1094). The burden then shifts to APAC to provide a
legitimate, non-discriminatory reason for its hiring decision. Id. See also
Chapman, ___ F.3d at 118. If such a reason is articulated, the plaintiff then “has
the opportunity to discredit the defendant’s proffered reasons for its decision.”
Combs, 106 F.3d at 1528. In other words, Durley must provide sufficient evidence
to raise a question of fact as to whether APAC’s proffered reason is pretextual.
Durley has established a prima facie case of employment discrimination, and
APAC concedes that point. She is female, she applied for the position of
Purchasing Agent, and Rapallo and Bair testified that she was qualified for the
position of Purchasing Agent. The position was awarded to Warnock, who was the
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warehouse foreman prior to his promotion to Purchasing Agent. APAC asserts,
however, that Durley has failed to establish sufficient evidence of pretext to rebut
APAC’s proffered non-discriminatory reason for hiring Warnock instead of
Durley. APAC asserts that, at the time that Bair retired and a replacement was
needed to fill his position, the warehouse was being closed, so Rapallo decided to
consolidate the functions of Purchasing Agent and warehouse foreman into one
position and awarded it to Warnock because he was more qualified than Durley to
fill the new position.
In his Recommendation and Report, the magistrate judge found that Durley
had provided sufficient evidence of pretext to send the Title VII discrimination
claim to a jury. Relying on Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994), the
magistrate judge found that APAC’s post-hoc formulation of a job description that
emphasized Warnock’s warehouse and fabrication skills, combined with
Warnock’s lack of administrative or purchasing experience, presented sufficient
evidence of pretext to raise a material question of fact. The district judge disagreed
and granted summary judgment for APAC, reasoning that Durley had failed to
provide evidence that the job description was an inaccurate reflection of
Warnock’s actual duties as Purchasing Agent.
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We agree with the magistrate judge that the Title VII claim should have been
presented to the jury. Durley presented evidence that she was qualified for the
position and that Bair considered her to be familiar with 85% of the duties of the
Purchasing Agent. Deposition testimony also demonstrated that Warnock had no
formal administrative or purchasing experience. Indeed, Durley testified in her
deposition that she assisted in training Warnock after Bair retired. A reasonable
jury could conclude that Durley was more qualified to handle the administrative
and purchasing duties performed by the Purchasing Agent.
APAC alleges, however, that the newly consolidated position required
different skills which made Warnock the more qualified candidate. APAC
presented a job description to the EEOC which was created after the discrimination
claim was filed, because APAC claimed that no job descriptions existed for
positions in Plant Services. Bair stated, however, that he prepared a list for
Rapallo of what the duties of the Purchasing Agent would be if the jobs were
consolidated, and that only 1 percent of the duties would involve fabrication and
simple welding. Bair also understood that the Purchasing Agent was to handle
warehouse duties because the shipping/receiving clerk position was to be
eliminated along with the warehouse foreman position. Durley presented evidence
that a shipping/receiving clerk was hired after Warnock became the Purchasing
8
Agent. The district court erred in finding that no evidence was presented to
contradict APAC’s provided job description.
In Batey, the plaintiff’s supervisor decided to consolidate two positions and
created a qualifications matrix for the new job that emphasized the skills of one
position over another position, with the result that Batey was not awarded the
promotion. Id. at 1334-35. We found that summary judgment for the defendant
was improperly granted in Batey, because the evidence demonstrated that Batey
had more relevant qualifications and all three men who had previously occupied
her position had received the promotion. Id. While the evidence in Durley’s case
is not as strong, it is sufficient to create a question of fact for the jury, because
discriminatory intent could be inferred from APAC’s decision to emphasize
Warnock’s warehouse skills over the purchasing and administrative skills
possessed by Durley in awarding him the position. APAC’s argument that no job
description existed is contradicted by Bair’s testimony that he created a list of
skills at Rapallo’s request. The further evidence that a warehouse shipper/receiver
was hired after Warnock assumed the position of purchasing agent creates further
doubt about whether the job description created by APAC is accurate, or designed
to make Warnock appear as qualified as Durley. We find that Durley presented
sufficient evidence to raise a question of fact as to whether APAC’s proffered non-
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discriminatory reason for hiring Warnock was pretextual, and, accordingly, we
REVERSE the district judge’s grant of summary judgment to APAC on the failure
to promote claim.
B. Disability Discrimination
Durley also asserted a claim for disability discrimination based on APAC’s
failure to promote her to purchasing agent. The burden of proof for an ADA claim
is also based on the framework set forth in McDonnell Douglas Corp. See 411
U.S. at 802, 93 S. Ct. at 1824. In order to establish a prima facie ADA violation,
Durley must demonstrate that she is a qualified individual with a disability and was
discriminated against because of that disability. Witter v. Delta Air Lines, Inc.,
138 F.3d 1366, 1369 (11th Cir. 1998). In order to meet the definition of disabled,
Durley must show that she was substantially limited in a major life activity as a
result of a physical or mental impairment. 42 U.S.C. § 12102(2). Durley argues
that she is limited in the major life activity of working as a result of her CFS. Her
own testimony, however, defeats her claim.3 Durley testified that, even when her
condition was allegedly being aggravated by work-related stress, she “was able to
3
The parties do not contest that Durley is now fully disabled in the life activity of
working. The relevant time period at issue is the period during which Bair retired and Warnock
was promoted, during which period Durley continued to work.
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perform the job . . . The work got done always.” Durley Depo. at 208-09. The
district judge properly found that Durley was not disabled within the meaning of
the statute at the time of the alleged failure to promote, and summary judgment on
the ADA claim was appropriate.
C. Retaliation and Constructive Discharge
Durley claims that she was constructively discharged in retaliation for her
filing of an EEOC charge against APAC. 42 U.S.C. § 2000e-3(a) prohibits such
retaliation. In order to establish a prima facie case of retaliation, “a plaintiff must
show that (1) she [filed an EEOC charge]; (2) she suffered an adverse employment
action; and (3) the adverse action was causally related to the protected expression.”
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998). Durley
meets the first element, as she did file an EEOC charge.
The adverse employment action of which Durley complains is constructive
discharge. She argues that Rapallo harassed her regarding medically necessary
absences and tardiness and that his harassment increased after she filed her EEOC
charge. She also points to her treatment by fellow employees, and the comparative
size of her raise as further evidence that she was constructively discharged. In
order to successfully state a claim, however, Durley was required to “demonstrate
that working conditions were ‘so intolerable that a reasonable person in her
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position would have been compelled to resign.’” Poole v. Country Club of
Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997). That standard has not been
met, and accordingly, summary judgment was appropriate.
Even if the actions of which Durley complains were sufficient to create
intolerable working conditions, the problem of causation remains. Durley did not
establish that other employees besides Rapallo had knowledge of her EEOC
charge. Furthermore, the increase in harassment by Rapallo, which consisted of
him questioning Durley about the reasons for her absences, increased at the same
time as a corresponding increase in absences. Causation has also not been
established. Accordingly, summary judgment on the retaliation and constructive
discharge claim was appropriate.
D. State Law Claims
Durley also sought damages for intentional infliction of emotional distress,
and her husband sought damages for loss of consortium. The district court
properly granted summary judgment on the intentional infliction of emotional
distress claim. Durley failed to establish that the conduct of Rapallo or APAC was
extreme and outrageous. See Mears v. Gulfstream Aerospace Corp., 225 Ga. App.
636, 484 S.E.2d 659, 663 (Ga. App. 1997) (defining elements of the tort of
intentional infliction of emotional distress). The burden on a plaintiff asserting a
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claim for intentional infliction of emotional distress is heavy. Id. at 664. Rudeness
and insensitivity that result in hurt feelings will not, in and of themselves, establish
liability. See id. Considering the totality of the circumstances, Durley has not
established that such extreme and outrageous behavior occurred.
James Durley’s loss of consortium claim must also fail. Loss of consortium
is a derivative tort, and no liability can attach where the defendant owes no tort
liability to the spouse. See Hightower v. Landrum, 109 Ga. App. 510, 514, 136
S.E.2d 425, 428 (Ga. App. 1964). The Title VII failure to promote claim does not
provide a basis for derivative liability for loss of consortium. Summary judgment
was properly granted on the loss of consortium claim.
III. CONCLUSION
The district judge granted summary judgment for Rapallo and APAC on all
grounds. We REVERSE the grant of summary judgment on the Title VII failure to
promote claim and AFFIRM the grant of summary judgment on all other claims,
and REMAND for further proceedings consistent with this opinion.
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