Birdyshaw v. Dillard's Inc.

308 F. App'x 431
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 28, 2009
DocketNo. 08-12824
StatusPublished
Cited by6 cases

This text of 308 F. App'x 431 (Birdyshaw v. Dillard's Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Birdyshaw v. Dillard's Inc., 308 F. App'x 431 (11th Cir. 2009).

Opinion

PER CURIAM:

Carol Birdyshaw appeals from the district court’s grant of summary judgment in favor of Dillard’s Inc. on her two retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).1 For the reasons set forth below, we affirm.

I.

In 2004, Birdyshaw filed an amended complaint against Dillard’s, alleging violations of Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act (“ADEA”), and Alabama state law.

Birdyshaw’s complaint generally alleged that she was a woman over 40 years old and had been employed as an area sales manager (“ASM”) at a Dillard’s department store in Huntsville, Alabama. She worked under both Mary Davis, the operations manager, and Steven Moretti, the store manager. Upon Moretti’s arrival in October 2000, he became increasingly hostile to Birdyshaw and made derogatory remarks about her age and gender. In a November 25, 2000, meeting involving Birdyshaw, Davis, and Moretti, Moretti and Birdyshaw got in a work-related confrontation. Due to the anxiety from the confrontation with Moretti, Birdyshaw’s doctor placed her on medical leave. Following the incident, Birdyshaw complained to Dillard’s management about Moretti’s behavior. While Birdyshaw was out on medical leave, Moretti terminated her salary benefits, but after several weeks, Dillard’s reinstated those benefits. On February 16, 2001, Birdyshaw filed a charge of discrimination against Dillard’s with the Equal Employment Opportunity Commission (“EEOC”).

Birdyshaw alleged ten causes of actions, but only her two retaliation claims are at issue in this appeal. In the first retaliation claim, Birdyshaw alleged that, as a result of her complaint about Moretti, Dillard’s retaliated against her by suspending her salary benefits while she was on medical leave. In her second retaliation claim, Birdyshaw alleged that Dillard’s retaliated against her by failing to grant her a transfer to a different store, which ultimately led to her termination.

Dillard’s filed a motion for summary judgment, arguing Birdyshaw could not show an adverse employment action and that it had legitimate nondiscriminatory reasons for suspending her salary and not granting her a transfer. With respect to the transfer request, Dillard’s argued that, as a matter of policy, it did not transfer employees who were on leave and, because Birdyshaw requested the transfer to take effect only after she was permitted to return to work — permission which her doctor first granted only after she was terminated — her request never became ripe.

Dillard’s attached a 2003 deposition given by Birdyshaw, as well as numerous exhibits introduced during that deposition, which provided as follows. Birdyshaw testified that, before the incident with Moretti on November 25, 2000, she had previously complained to Davis that Moretti had discriminated against Birdyshaw based on her sex and age. Specifically, after Davis informed Birdyshaw on one occasion that Moretti had fired another employee, Bir-dyshaw responded: “What is wrong with him. Is he trying to get rid of all the [433]*433older managers, is he trying to clean house. What is going on.”

On November 25, 2000, Moretti became angry with Birdyshaw for having not filled a particular position in the store. Specifically, Moretti asked her whether she had contacted other managers about the job opening, and Birdyshaw responded that she had done so in a managers’ meeting. Moretti challenged her assertion, screamed at her, called her a liar, and told her not to “bullshit” him. Birdyshaw became terrified, told Moretti that his language was inappropriate, and walked out of the meeting. Birdyshaw made it back to her office, at which point she cried and experienced a headache and chest and arm pains. She proceeded to walk out of the store so that she could go to the doctor. Moretti caught up to her as she was walking out and grabbed her arm. He told Birdyshaw that she needed to return to the store, and Birdyshaw refused, stating that he had been very rude and abusive. Moretti responded that he did not like being lied to and, after Birdyshaw insisted that she had not been lying, Moretti called her a “lying bitch.” Ultimately, Birdy-shaw left the mall, called a doctor, and went to the emergency room.

The following day, Birdyshaw5 wrote a letter to Dillard’s management describing the incident with Moretti. Birdyshaw acknowledged in her testimony that nowhere in the letter did she suggest that Moretti was discriminating against her because of her gender.

Rick Willey, the regional manager, responded to Birdyshaw’s letter and, after characterizing her complaint as one alleging a “hostile and harassing work environment,” explained that Birdyshaw’s letter was highly embellished when compared to the account provided by Moretti and Davis. Willey did not mention any allegation of gender discrimination. The letter also informed Birdyshaw that, if she had suffered a job-related injury that made her unable to work, she could continue to receive her full salary as long she provided certification from a physician.

Birdyshaw testified that she became unable to work at that time and began to submit certifications from her doctors so providing. Various doctors placed Birdy-shaw on medical leave from the end of November 2000, until her termination one year later. None of the doctor’s notes informed Dillard’s that Birdyshaw was able to return to work if she was not required to work for Moretti.

On January 17, 2001, Moretti wrote Bir-dyshaw a letter explaining that he was discontinuing her salary benefits because he had discovered that she had applied for a position at another department store while claiming to be on medical leave. Approximately one month later, Dillard’s reinstated Birdyshaw’s salary and awarded her back pay.

On March 16, 2001, Birdyshaw wrote a letter to Burt Squires in Dillard’s corporate office requesting a transfer to Yuma, Arizona. This letter provided:

Based on my doctor’s recommendation that I not return to Dillard’s Madison Square Mall (under the supervision of Steve Moretti) and due to Steve Moret-ti’s past discrimination and harassment of me (which is the basis of a currently pending EEOC charge) plus Mr. Wil-ley’s failure to adequately investigate or remedy the discrimination and harassment by Steven Moretti, I am requesting a move out of division 4.
I am requesting a transfer to Yuma, Arizona (near my family) to be effective when my doctor releases me to return to work....

Birdyshaw testified that she did not receive a response to the letter, and she [434]*434never returned to work at Dillard’s because they never granted her a transfer.

On September 17, 2001, upon receipt of a doctor’s note extending Birdyshaw’s medical leave through December 1, 2001, Davis wrote Birdyshaw a letter, informing her that her allotted year-long period of leave would expire on November 26, 2001, and that if she did not return to work by that day, she would be terminated.

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Bluebook (online)
308 F. App'x 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birdyshaw-v-dillards-inc-ca11-2009.