Jeanne Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 11th Cir. (2003)
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Scribd Government DocsJeanne Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 11th Cir. (2003)
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Scribd Government Docs352 F.
3d 1342
Jeanne Smith, Plaintiff-Appellant,
v.
J. Smith Lanier & Co., Defendant-Appellee.
No. 03-12591 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
December 12, 2003.
Larry Allen Pankey, Pankey, Coffman & Horlock, L.L.C., Cumming, GA,
for Plaintiff-Appellant.
Allen William Groves, Michael P. Elkon, Seyfarth Shaw, Atlanta, GA, for
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Jeanne Smith appeals the district court's grant of summary judgment to J. Smith
Lanier & Co. (JSL), in her lawsuit alleging failure to rehire or transfer after her
position was eliminated, in violation of the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. 621, et seq. The district court did not err in granting
summary judgment to JSL. We affirm.
I. BACKGROUND
2
On October 11, 2002, Bill Edwards, Vice-President of Human Resources and
Administration for JSL, and Tom Yearian, Smith's supervisor, informed Smith
her job was being eliminated. Smith claims she specifically asked Edwards for
another position in the company during the meeting. She informed him she
would take any position in the company and she was willing to relocate.
Edwards, however, told Smith nothing was available for her at that time.
Smith admitted that, after her termination meeting, but prior to her last day of
work, she possessed knowledge of several positions listed as vacant on JSL's
corporate website. Smith, however, did not express specific interest in any of
them. Moreover, Smith never submitted a formal application for another
position at JSL at any time.
The district court found Smith failed to produce any evidence she applied for a
job or put JSL on notice she was interested in a specific position. Accordingly,
the district court issued an order granting summary judgment to JSL, from
which Smith now appeals.
II. DISCUSSION
5
We review a district court's grant of summary judgment de novo. Turlington v.
Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998). In an ADEA case,
we apply the following burden-shifting scheme. "Initially, the plaintiff must
establish a prima facie case of discrimination. The employer then must respond
with a legitimate, nondiscriminatory reason for its actions. In order to prevail,
the plaintiff must establish that the employer's articulated legitimate,
nondiscriminatory reason was a pretext to mask unlawful discrimination." Id. In
a reduction-in-force (RIF) case and where a position is eliminated in its
entirety:
the plaintiff establishes a prima facie case [of age discrimination] by
demonstrating (1) that she was in a protected age group and was adversely
affected by an employment decision, (2) that she was qualified for her current
position or to assume another position at the time of discharge, and (3)
evidence by which a fact finder could reasonably conclude that the employer
intended to discriminate on the basis of age in reaching that decision.
Jameson v. Arrow Co., 75 F.3d 1528, 1531-32 (11th Cir.1996). The ADEA,
however, "does not mandate that employers establish an interdepartmental
transfer program during the course of an RIF, ... or impose any added burden on
employers to transfer or rehire laid-off workers in the protected age group as a
matter of course." Id. at 1532-33 (citations omitted). Rather, the ADEA simply
provides that a discharged employee "who applies for a job for which she is
qualified and which is available at the time of her termination must be
considered for that job along with all other candidates, and cannot be denied the
position based upon her age." Id. at 1533 (emphasis added).
The question presented is whether Smith's October 11 statement of general
interest in any job satisfies Jameson's requirement that she apply for a job. In
other words, we must decide whether Smith's general statement relieves her of
the obligation to actually apply for a specific position.
9
The Sixth Circuit held that a plaintiff's failure to rehire claim failed where the
plaintiff only expressed a general interest in being rehired and did not actually
submit an application for a publicized open position. Wanger v. G.A. Gray Co.,
872 F.2d 142, 145-46 (6th Cir.1989). Similarly, the Seventh Circuit held that, if
an employer has a system of posting jobs and allowing employees to apply for
them, an employee's failure to apply for a particular position prevents the
employee from establishing a prima facie case of discrimination. Box v. A & P
Tea Co., 772 F.2d 1372, 1376 (7th Cir.1985). 1
10
We agree with the Sixth and Seventh Circuits. A general interest in being
rehired without submitting an application is not enough to establish a prima
facie case of age discrimination when the defendant-employer has publicized an
open position.2 Here, Smith knew of vacant positions, but she chose not to
apply for any of them, even though she admitted she was neither dissuaded nor
prevented by management from doing so. Moreover, Smith advances no
evidence suggesting it was JSL's policy or practice to transfer individuals to
vacant positions who had not first specifically applied for them.3
11
Smith cites Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th
Cir.1984), to support her argument that JSL had some reason or duty to
consider Smith for other positions, even though Smith never applied for those
positions. Carmichael, however, involved a system where there was no formal
notice of jobs, and the company relied on word of mouth and informal review
procedures. There we found the plaintiff was not required to apply for a
specific job, because he had no way of knowing about its availability. Here,
JSL formally posts its vacant positions on the company's website or in local
newspapers and requires an application be filed for the position. Smith knew
about the availability of positions and chose not to formally apply. Thus,
Carmichael is inapplicable.
III. CONCLUSION
12
For the reasons stated, Smith fails to establish a prima facie case of
discrimination. Accordingly, we hold that the district court did not err by
granting JSL's motion for summary judgment.4
13
AFFIRMED.
Notes:
1
Smith relies onKehoe v. Anheuser-Busch, Inc., 96 F.3d 1095 (8th Cir.1996),
and Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir.1995), overruled
on other grounds by, Fisher v. Vassar College, 114 F.3d 1332 (2d Cir.1997),
for the proposition her failure to apply is not an absolute bar to her claim for
age discrimination. Smith's case, however, is different than both Kehoe and
Binder.
In Kehoe, the Eighth Circuit held a district court did not commit plain error
when it failed to instruct the jury the plaintiff was required to apply for an open
position as part of his prima facie case. 96 F.3d at 1105. The Eighth Circuit
found the plaintiff's evidence was sufficient to support the jury's conclusion his
employer discriminated against him because of his age, and therefore, no plain
error occurred. Id. The court noted it would be inclined to hold that the
application requirement should be excused in this case, as plaintiff's employer
had a reason or duty to consider him for the job because the supervisors knew
they were going to eliminate his position as a sports promotion coordinator at
the same time they were surveying candidates for an available sports promotion
coordinator. Id. at 1105 n. 13. In contrast, Smith was the only proposal
technician at JSL and none of the positions she identifies as possible transfers
are similarly situated to the position she held before.
In Binder, the Second Circuit found the employee's failure to apply for
positions through the formal process was not a bar to his age discrimination
suit. 57 F.3d at 200-01. The court found the words and deeds of the vice
president of human resources suggested to the employee that he did not need to
apply for positions filled through the formal process because the vice president
was already investigating those opportunities or because the employee could
not be considered for those positions because it would violate the employer's
underemployment policy. Id. Smith advances no similar evidence.
Smith relies onBeaver v. Rayonier, Inc., 200 F.3d 723 (11th Cir.1999), as a
case with similar facts where we found age discrimination. In that case,
however, we did not discuss either the impact of vacant jobs being made
known publicly or whether the plaintiff actually applied for any of the open
positions. Thus, Beaver is not relevant to our analysis.
We agree with the Sixth Circuit inWanger that there are "limited situations"
where an employee need not necessarily apply for a position before alleging
discrimination. This case is not one of the "limited situations."
We do not address Smith's arguments that the district court erred by finding (1)
she was required to show the open positions were similarly situated to her old
position, and (2) she failed to show she was qualified for the open positions,
because we find she failed to apply for the open positions
