United States District Court, D. Arizona
David G. Campbell United States District Judge.
Plaintiff Paul Johnson asserts claims against Federal Express Corporation (“FedEx”) for retaliation and constructive discharge in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (“Title VII”), and 42 U.S.C. § 1981. Doc. 15. FedEx moves for summary judgment, Docs. 95, and Johnson moves for partial summary judgment on the failure-to-mitigate defense. Doc. 99. The motions are fully briefed, Docs. 98, 101, 106, 108, 109, and the Court concludes that oral argument will not aid in its decision. For the reasons that follow, FedEx’s motion will be granted in part and denied in part, and Johnson’s motion will be denied.
Johnson began his employment with FedEx in 1981, when the company hired him as a part-time courier. Doc. 100-1 at 4. In 1990, FedEx promoted Johnson to operations manager for the Phoenix station. Id. at 6. In 1993, he was promoted to senior manager. Id. at 8. In early 2009, Johnson’s station was closed and he was informed that he would need to transfer to Las Vegas if he wished to remain in a management position. Doc. 107-1 at 5, ¶ 9. In March 2009, Johnson filed an internal Equal Employment Opportunity (“EEO”) complaint, alleging that the closure of his station constituted discrimination based on race and age, or retaliation for his filing of another EEO complaint in 2003. See Doc. 97-2. After an extensive inquiry, FedEx concluded that these allegations were unsubstantiated and that the decision to close Johnson’s station was made for legitimate business reasons. Id. at 15-16.
Johnson elected to take a senior manager position in Las Vegas. Docs. 96-2 at 6; 96-3 at 11. Johnson contends that FedEx began retaliating against him shortly after he accepted this position, with Dr. Raffi Arzoumanian, Managing Director for the Canyon District, engaging in most of the retaliatory conduct. Johnson testified that Arzoumanian began making “derogatory remarks” towards him, warned him that his every decision would be scrutinized, and told him that “[f]iling an EEO is the biggest mistake you ever made.” Docs. 96-1 at 30; 107-1 at 5, ¶ 11. Arzoumanian also initiated counseling sessions with Johnson on June 15 and July 6, 2009. Doc. 96-3 at 21, 27. Following the second session, Arzoumanian issued a memorandum to Johnson stating that “[f]urther instances of leadership failures will be considered conduct issues and will result in discipline up to and including termination.” Doc. 96-3 at 27. Johnson filed a charge of discrimination with the EEOC, alleging that the counseling sessions constituted retaliation for his filing of an internal complaint. Doc. 107-1 at 5-6, ¶ 13.
Johnson went on medical leave on July 21, 2009. Doc. 107-1 at 257. While on leave, his position was eliminated. Id. Thereafter, Johnson accepted an operations manager position in Addison, Texas, although this was a step below his previous position as senior manager. Id. at 5-6, ¶¶ 6, 14. The job offer listed a monthly salary of $7, 453, but after Johnson relocated to Texas in reliance on the offer, FedEx provided him with a revised job offer reducing his monthly pay to $7, 095. Id. at 6, ¶¶ 14, 17-18. Johnson’s human resources representative, Gail Davis, testified that she made the salary error without any knowledge of Johnson’s protected activities and that Arzoumanian was not responsible for the error. Doc. 97-3 at 3-4, ¶ 6.
In September 2010, Johnson obtained approval for a personal emergency transfer to the Phoenix area, and applied for an operations manager position in Flagstaff under Senior Manager Jose Corrales. Doc. 97-4 at 5. Arzoumanian attempted to prevent Johnson from getting this position by encouraging Corrales to eliminate it. Doc. 107-1 at 180. When it became clear that Johnson would be hired, Arzoumanian instructed Corrales to manage Johnson more closely than other operations managers and not to accommodate Johnson’s schedule. Id. Despite Arzoumanian’s interference, Corrales offered Johnson the position. Doc. 96-3 at 14.
Johnson’s time in Flagstaff was largely uneventful, with two exceptions. First, on one occasion, several employees complained to Arzoumanian that Johnson was sending them home early and loading trucks himself in an effort to improve productivity. Doc. 107-1 at 69-70. Arzoumanian became very upset and sought to issue Johnson a warning letter over the incident. Id. at 70. Corrales convinced Arzoumanian to let him handle the situation, and no warning letter was issued. Id. Second, Johnson’s station was assigned an incorrect performance goal in the summer of 2012. Corrales testified that the engineering department made a clerical error in setting Johnson’s performance goal, but communicated this fact to Johnson within the hour and told him he would not be responsible for achieving the incorrect goal. Doc. 97-5 at 5. This account is corroborated by John Alfonso, Manager for Operations Planning & Engineering, who submitted an affidavit stating that the department made an “unintentional error, ” that the error was quickly corrected, and that Johnson was in no way penalized for the error. Doc. 97-1 at 4, ¶ 9. Johnson filed a charge of discrimination with the EEOC related to the incorrect performance goal. Doc. 107-1 at 7, ¶ 27.
Shortly after Johnson accepted the Flagstaff position, a position opened at the Phoenix Airport Ramp. Doc. 107-1 at 76. Corrales intended to allow Johnson to apply for the position, but Johnson’s offer letter for the Flagstaff position had provided that Johnson would be “ineligible to apply for other positions for a period of 24 months from your start date of November 1, 2010.” Doc. 96-3 at 14. FedEx determined that this “time-and-commitment” requirement would not be waived to allow Johnson to apply for the Phoenix airport position. Doc. 107-1 at 76-77.
In November 2011, FedEx did waive the time-and-commitment requirement to allow Johnson to apply for an open senior manager position at the ZSYA station in Phoenix. Docs. 96-1 at 33-34; 107-1 at 258. After the position went to another candidate (Robin Brower, an existing senior manager), Johnson filed an internal complaint asserting that Arzoumanian’s refusal to interview him for the position constituted retaliation. Doc. 96-3 at 1-6. Arzoumanian defended his decision on the grounds that it was required by FedEx’s Senior Manager Selection System (“SMSS”). Doc. 96-7 at 19. The SMSS policy required managing directors to “[c]onsider all current Senior Managers before considering other candidates” for an open senior manager position. Doc. 96-5 at 10. Arzoumanian noted that Brower was the only existing senior manager to apply for the position and that eleven applicants situated similarly to Johnson were rejected. Doc. 96-7 at 19. After reviewing Johnson’s complaint, Jeff Walker, a managing director from another district, concluded that Arzoumanian’s decision was consistent with the SMSS policy and did not constitute retaliation. Doc. 97-9 at 5. This decision was upheld by another managing director, the Vice President, and the Appeals Board. Doc. 107-1 at 257-264. Johnson subsequently filed a charge of discrimination with the EEOC related to this incident. Doc. 107-1 at 7, ¶ 26.
In March 2013, Johnson applied for an open senior manager position at the MSCA station in Tempe. Doc. 96-7 at 23. Johnson was not interviewed, and the position went to Randy Gordon, an existing senior manager. Docs. 96-1 at 38; 96-7 at 21; 107-1 at 7, ¶ 28. Johnson filed an internal complaint challenging this decision. Doc. 107-1 at 7, ¶ 29.
In a final attempt to return to the Phoenix area, Johnson passed a physical and obtained a commercial driver’s license in February 2014. Doc. 107-1 at 7. He then attempted to apply for an entry-level courier position at the SCFA station in Scottsdale through his human resources representative, Gail Davis. Docs. 109-1 at 5; 107-1 at 7, ¶ 32. According to Ralph Valenzuela, who at the time was an operations manager at the SCFA station, the SCFA managers lied to Davis about the existence of open courier positions in order to prevent Johnson from obtaining one of these positions. Doc. 107-1 at 294, ¶¶ 16-18. Valenzuela avers that there were five open positions at the time, and all five were filled several weeks later, after Johnson retired. Id., ¶¶ 19-20. Johnson filed a charge of discrimination with the EEOC based on this incident. Doc. 107 at 8, ¶ 34.
Johnson elected to retire in February 2014, the month he turned 55 years old and qualified for early retirement. Doc. 102-1 at 7. In doing so, Johnson fulfilled a promise to his wife he would retire by 55 if he had not secured a position in Phoenix. Id. at 11-12. FedEx indicated that Johnson could continue working as an operations manager in Flagstaff, but he declined to do so. Doc. 107-1 at 303-04.
II. Legal Standard.
A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. FedEx’s Motion.
Title VII prohibits retaliation against an employee for opposing an unlawful employment practice or participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). A successful retaliation claim must establish that (1) the employee engaged in a protected activity; (2) the employer took an adverse employment action against the employee; and (3) the employer would not have taken the adverse employment action but for a design to retaliate. Nilsson v. City of Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2535 (2013) (clarifying that employee must show “but for” causation). The filing of a charge of discrimination with the EEOC is a protected activity, as is the filing of an internal complaint alleging a Title VII violation. See Bouman v. Block, 940 F.2d 1211, 1228 (9th Cir. 1991); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009).
FedEx does not dispute that Johnson engaged in protected activity by filing internal complaints in March 2009 and March 2013 and charges of discrimination in July 2009, March 2012, October 2012, and August 2014. Instead, FedEx argues that Johnson has not shown that he was subjected to any ...