Free Exhibit to a Document - District Court of Delaware - Delaware

` Case 1:94-cv-00336-KAJ Document 439-4 Filed O3/11/2005 Page Parge35 of S
119 Fed.Appx. 774 Page 5
119 Fed.Appx. 774, 2005 WI. 221534 (6th Cir.(Tenn.)), 2005 Fed.App. 0075N
(Cite as: 119 Fed.Appx. 774, 2005 WL 221534 (6th Cir.(Tenn.)))
B. FLSA Claim _ [her]," the tiring would not have occurred. Kearney
v. Town of Wareham, 3l6 F.3d IS, 23 (lst Cir.2002)
[1] McDaniel alleged in her complaint that she was . _
fired in retaliation for her efforts to have certain -
software development employees classified as McDaniel argues that the district court erred when
non-exempt. The FLSA makes it unlawful for an it ruled that she had failed to produce evidence that
employer to fire an employee who, among other she was terminated in violation of the FLSA. The
things, engages in any of the following protected district court ruled that McDaniel had not
acts: (I) filing a complaint against employer; (2) established a causal connection between her FLSA
instituting a procedure against an employer under activity and her firing, and that Transccnder had
the FLSA; and (3) testifying in any proceeding presented legitimate business reasons to support its
brought under the FLSA. 29 U.S.C. § 2l5(a)(3). decision to discharge her. McDanie1's argument is
This court has previously held that to satisfy the based on the temporal proximity between her
"complaint" requirement, the plaintiff need not file protected activity and her tiring. Transceudefs
a formal complaint with the Equal Employment tiring of McDaniel closely followed her FLSA
Oppornmity Commission; the lodging of a activity, giving the impression of retaliation, See
complamt with the employer is sufficient. EEOC v. Moon v. Tramp. Drivers, Inc., 836 F.2d 226, 230
Romeo Community Schools, 976 F.2d 985, 989 (6th (6th Cir.1987) (Ending that the fact that the adverse
Cir.l992). The district court found that by action was taken shortly after the plaintiffs exercise
undertaking to classify Transcendefs employees of protected rights is relevant to causation).
under the FLSA and then disputing the
classifications determined by Arnold and Pandey, While temporal proximity alone is insufficient to
McDaniel had engaged in protected activity under show retaliation, see Nguyen v. City of Cleveland;
the FLSA. 229 F.3d 559, 566 (6th Cir.2000) (explaining that
temporal proximity alone generally will not support
**5 In the absence of direct evidence that an inference of discrimination if there is no other
Transcender retaliated against McDaniel, the compelling evidence), McDaniel has adduced other
appropriate framework for analyzing McDaniel's evidence in support of her claim of retaliation.
claim of unlawful retaliation under the FLSA is the Pandey obtained the approved job descriptions from
familiar burden-shifting framework articulated in McDaniel on November 13, 2000. Two clays later,
McDonnell Douglas Corp. v. Green, 411 U.S. 792, Pandey received conflicting information from
93 S,Ct. 1817, 36 L.Ed.2d 668 (1973). See Cbrmer Arnold. Pandey then transmitted An10ld's
v. Schnuck Markers, Ima, 121 F.3d 1390, 1394 memorandum to McDaniel, seeking a response tiom
(10th Cir.l99’?) (applying the burden-shifting test to her. Shortly thereafter, McDaniel advised Pandey
a FLSA retaliation claim). Thus, McDaniel must that she disagreed with Arnold's representations in
first make out a prima facie case of retaliatory part because they were based upon modified job
discharge by Transcender. Then, if Transcender descriptions that she considered to be exaggerated.
advances legitimate reasons for firing her, On November 28, 2000, Pandey sided with Amold's
McDaniel must show that the companys proffered suggested revisions. ‘
reasons are pretextual. To establish a prima facie
case of reprisal in violation of the FLSA, McDaniel **6 Twenty-two days later, on the morning of
must show not only that she engaged in protected January 5, 2001, Pandey terminated McDaniel.
activity and that Transcender subsequently engaged Pandey then instructed McCarthy, McDaniel's
in an adverse action, which she has done, but also a eventual replacement, to take steps to change five
causal connection between her action and the tiring. employees statuses back to exempt, which was
See Williams v. General Motors Corp., 187 F.3d completed in n1icl—January, within days of
553, 568 (6th Cir.1999) (analyzing retaliation claim McDaniel's termination. Upon the consideration of
under Title VII). Where a plaintiff makes that all of the above facts, a jury could reasonably infer
showing and the employer then proiTers a legitimate that McDaniel's failure to implement the change in
reason for tiring her, the plaintiff *780 then must the FLSA classifications was the reason for her
"show that, but for the defendants animus toward termination. Thus, the district court erred in finding
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· Case 1:94-cv-00336-KAJ Document 439-4 Filed O3/11/2005 Page qsgééiq Org
119 Fed.Appx. 774 Page 6
119 Fed.Appx. 774, 2005 WL 221534 (6th Cir.(Tenn.)), 2005 Fed.App. 0075N
(Cite as: 119 Fed.Appx. 774, 2005 VVL 221534 (6th Cir.(Tenn.)))
the absence of agenuine issue of material fact. v. Burcltne, 450 U.S. 248, 256, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981)). lf McDaniel satisfies the
McDaniel also argues that the district court erred prima facie burden, the burden of production then
when it ruled that she failed to show that shifts to Transcender, who must articulate a
Transcender's articulated nondiscrirninatory reason legitimate, nondiscriminatory reason for her
for tiring her was pretext for retaliation. In termination. Mitchell, 964 F.2d at 584, n. 6. lf
opposition to McDaniel's FLSA claim, Transcender Transcender meets that burden, then the burden
contended that she was terminated primarily as a shifts back to McDaniel, who must show that the
result of her erroneous classification of employees. nondiscriminatory rationale proffered by
It is tmdisputed that McDaniel believed that her Transcender is a mere pretext for intentional
FLSA classifications were correct. McDaniel discrimination based on age. Id. McDaniel must
` presented evidence that she based her decision to prove "that the asserted reasons have no basis in
classify the tive. employees as non-exempt on the fact, that the reasons did not motivate the discharge,
employee job descriptions that had been approved or, if they were factors in the decision, that they
by their supervisors and interviews conducted by were jointly insufficient to motivate the discharge"
her assistant. Thereafter, Arnold modified the job Bums v. Ctry of Columbus, 91 F.3d 836, 844 (6th
descriptions to justify the positions as exempt. Ci.r.1996).
Viewing this evidence in the light most favorable to
McDaniel, a reasonable jury could conclude that **7 The district court assumed that McDaniel met
Transcendefs purported justification for tiring the prima facie case and went on to consider
McDaniel was mere pretext because the company Transceudefs reasons for tiring McDaniel.
modified employee job descriptions in an apparent Transcender contended that it fired McDaniel for ‘
effort to change those employees FLSA statuses her failure to recruit an adequate number of new
from non-exempt to exempt. Iuasmuch as a genuine software developers and her handling of the FLSA
issue of material fact remam as to whether employee classifications. While these proffered
Transcenderds reason for firing McDaniel was *781 reasons do have some basis in fact, other evidence
mere pretext, the district court erred in granting exists to establish that the proffered reasons were
summary judgment for Transcender. · not the motivation for McDaniel‘s discharge. One
of the reasons that Transcender provides for
C. ADEA Claim McDaniel*s termination is that she failed to recruit
an "adequate number of software developers."
[2] In her complaint, McDaniel also alleges that Transcender, however, never provided a definitive
Transcender fired her because of her age, in number of employees for McDaniel to recruit.
violation of the ADEA. The ADEA makes it Pandey only informed her that Transcender needed
unlawful for an employer to fire or otherwise to hire "a lot" of people. To support her assertion
discriminate against a worker with respect to that this was not a reason that motivated her
compensation or conditions of employment on the discharge, McDaniel says that she was never
basis of age. 29 U.S.C. § 623(a)(l). The analytical provided with performance standards, but rather the
framework used in Title VH cases applies to claims recruiting methods that she used, which included
of age discrimination under the ADEA. Mitchell v. screening resumes, were consistent with what
Toledo Hospital, 964 P.2d 577, 582 (6th Cir.1992). Pandey specifically requested. Moreover,
To make out a prima facie case of discriminatory McDaniel received a high rating of "exceptiortal"
discharge in the absence of direct evidence of from her immediate supervisor during her
discriminatory intent based on age, McDaniel must employment evaluation, and Pandey even
prove that: (1) she was a member of the protected authorized her pay increase.
class; (2) she was discharged; (3) she was qualified
- for the position; and (4) she was replaced by a ln further support of McDanie1's ADEA claim, the
person outside the protected class. Mitchell, 964 record indicates that Pandey expressed reservations
F.2d at 582 (citing McDonnell Douglas Corp. v. about l1.iri.ng McDaniel because of her age. The
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 record suggests that Pandey was upset about the
L.Ed.2d 668 (1973); Texas Dep'! of Cmty. Afrfrs short tenure and early departure of McDaniel's
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L ‘ Case 1:94-cv-00336-KAJ Document 439-4 Filed 03/11/2005 Page 3 qifags 3 afs
119 Fed.Appx. 774 Page 7
119 Fed.Appx. 774, 2005 WL 221534 {6th Cir.(Tenn.)), 2005 Fed.App. 0075N
(Cite as: 119 Fed.App1t. 774, 2005 WL 221534 (6th Cir.{Tenn.)))
predecessor, who had joined Transcender at the age evidence. McDaniel served Transcender with a
of sixty-eight. Thus, at the time of McDaniel's hire, request for inspection and copying of its computers
Pandey specifically inquired of Rose as to how long pursuant to Federal Rule of Civil Procedure 34.
he thought she would stay with the company, given McDaniel alleges that Transcender destroyed the
the fact that, like her predecessor, *782 McDaniel external creation date of a memorandum, which the
was also "laterinher career." company asserts was prepared by Acerno on
January 2, 2001. This document outlined many of
A jury could infer that recruitment was not a· the reasons for the company’s dissatisfaction with
priority at the time that McDaniel was fired. Thus, lvicDaniel's work. In her appeal, McDaniel argues
a question of fact exist concerning whether that Acemo has testified, among other things, that
McDaniel actually fulfilled her recruitment he (1) did not believe she should have been
responsibilities. A jury could reasonably conclude terminated, (2) never recommended her temrination,
that Pandey held reservations about McDaniel and () did not recall preparing the memorandum,
throughout her term of employment with the which ostensibly supported her termination.
company on the basis of her age. Inasmuch as her
failure to recruit was given as a legitimate, Upon DUI review of the record in this case, we
nondjscriminatory reason for her firing, and a conclude that the district court did not abuse its
question of fact exists on that issue, the district discretion in denying McDaniel a default judgment
court erred nr granting summary judgment on and sanctions. Assuming that the allegedly spoiled
McDaniel's ADEA claim. evidence would have shown, as McDaniel claims,
that Acerno did not write the contested
D. Destruction of Evidence memorandum, that information would not have
established a sufhcient evidentiary basis upon
[3] We review the district court’s decision to which we could determine that the district courts
exclude evidence of spoliation for abuse of denial of a default judgment or sanctions constituted
discretion. United States v. Copeland, 321 F.3d anabuse of im discretion.
582, 597 (6th Cir.2003). Spoliation is the
intentional destruction of evidence that is presumed [I1. CONCLUSION
to be rnrfavorable to the party responsible for the For the foregoing reasons, the court REVERSES
destruction. Id. The rules that apply to the spoiling the district courts grant of summary judgment in
_of evidence and the range of appropriate sanctiom favor of Transcendcr on McDaniel's ADEA and
are defined by state law; in this case, the law of FLSA claims and REMANDS the case to the
Tennessee. Nationwide Mu!. Fire Ins. Co. v. Ford district court for proceedings consistent with this
Motor Co., 174 F.3d 801, 804 (6th Cir.1999). opinion. The court AFFIRMS *783 the district
Under Tennessee law, "it is a general rule that the courts denial of default judgment or sanctions
intentional spoliation or destruction of evidence against Transcender.
relevant to a case raises an inference, that the
evidence would have been unfavorable to the cause 119 Fed.Appx. 774, 2005 WL 221534 (6th
of the spoliator." Thurmon—Bryont Elec. Supplv Cir.(Tenn.)), 2005 Fed.App. 0075N
Co., Inc. at oi'. v. Unisys Corp., inc. et ot`., No.
03A01-CV00152 (Tenn.Ct.App. March 16, 1992) Briefs and Other Related Documents (Back to
(citation omitted). This inference arises "only top)
where the spoliation was intentional, and
indicates fraud and a desire to suppress the truth .... . 03-5599 (Docket)
Furthermore, any presumption that may arise from (May. 13, 2003)
the spoliation is not conclusive, but rather is
rebuttable." Id. END OF DOCUMEN'i`
**8 In this case, McDaniel sought a default
judgment, or, in the alternative, sanctions, against
Transcender for willfully destroying relevant
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