Opinion
3:00-CV-2774-P
May 21, 2002
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion for Summary Judgment, filed January 23, 2002, and Plaintiff's Motion for Partial Summary Judgment, filed February 11, 2002. Additionally, the Court ordered supplemental briefing. Defendant filed a Supplement on May 10, 2002, and Plaintiff filed her response on May 14, 2002. After considering the summary judgment evidence, the parties' arguments and briefing, and the applicable law, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment and DENIES Plaintiffs Motion for Summary Judgment.
I. Background
Plaintiff Rosalie Radcliff ("Radcliff" or "Plaintiff") filed her Complaint alleging employment discrimination on December 21, 2000. Radcliff claims that Defendant Wal-Mart Stores, Inc. ("Wal-Mart" or "Defendant") discriminated against her in violation of the American with Disabilities Act of 1990 ("ADA") and the Age Discrimination in Employment Act ("ADEA"). Plaintiff also brings a state claim for intentional infliction of emotional distress.
Plaintiff was employed by Defendant, and worked for seven years as a telemarketer at a Sam's Club location owned by Defendant. Pl.'s Compl. ¶ 16. Plaintiff began working for Defendant when she was 71. In 1997, Defendant instituted changes in its marketing division. Def.'s App., Ex G, ¶ 3. These changes affected Plaintiffs job as a telemarketer. Specifically, Defendant reduced the personnel in each of its marketing offices. Id. at ¶ 5-6 Defendant instituted a reduction-in-force leaving only one employee in the position of telemarketer. Id. at ¶ 6. In Plaintiffs department, there were three telemarketers. According to the policy of Defendant, the employee who would remain in the telemarketer job was chosen by looking at current telemarketing employees' past evaluations and productivity levels. Id. at ¶ 5. Plaintiff was not chosen to remain in the position of telemarketer. Instead, according to the reduction-in-force policy, Plaintiff was transferred to a different department. Specifically, she was transferred to the position of store "greeter" on October 13, 1997. Pl.'s App. at 183. The employee who remained in the telemarketer position was Linda Hickman, who was at that time age 31. Pl.'s App. at 108. Plaintiff was then 77.
Much of Plaintiffs evidence comes from the EEOC Letter of Determination and Report. Defendant argues that such evidence is inadmissible and should not be considered by the Court. The Fifth Circuit has found that EEOC determinations are admissible. Garcia v. Gloor, 618 F.2d 264, 272 (5th Cir. 1980). Further, two district judges in this district have held that EEOC reports are admissible for the purpose of deciding a motion for summary judgment. See Bynum v. Fort Worth Indep. Sch. Dist., 41 F. Supp.2d 641, 656-57 (N.D. Tex. 1999) (McBryde, J.); Sanders v. Sybra, Inc., No. Civ. A. 3:00-CV-2559-D, 2002 WL 220062, *1 n. 4 (N.D. Tex. Feb. 11, 2002) (Fitzwater, J.).
Plaintiff claims that after she was transferred, she asked to be returned to the telemarketer job, but her application was denied in January or February 1998. Pl.'s App. at 8, 30, 169. Georgia Weimar, who originally worked as a telemarketer with Plaintiff, was transferred out of the marketing department in October 1997, and "keyed into" the telemarketer position on February 28, 1998. Pl.'s App. at 181. Weimar was then 54. Pl.'s App. at 108. Ultimately, another employee was made a telemarketer. Lee Harris, then 72, became a telemarketer in June 1998. Plaintiff testifies that she encouraged Harris to apply for the telemarketer job, and did not apply for the position herself at that time. Def.'s App., Ex. A., 122:7-12; 123:20-22.
Plaintiff worked as a greeter from October 13, 1997, until she began a medical leave of absence in 1998. The store greeter works at the front of the store, greeting customers as they enter the store, and verifying purchases as customers leave, among other duties. See Pl.'s App. at 43A. Plaintiff was also required to use a bungee type cord to assist her in controlling the flow of traffic through the doors. The bungee cord is connected to the greeter's wrist, waist, or clipboard. Def.'s App., Ex. A, 41:0-42:13. Plaintiff testifies that she told Defendant that she could not use a bungee cord because she had arthritis. Pl.'s App. at 189a-189c. Defendant asked for a doctor's note, and Plaintiff provided a note from Dr. Jack B. Vine, M.D. dated June 8, 1998. Pl.'s App. at 40, 190-91. The note "suggests" against "pulling a bungee cord device." Pl.'s App. at 40.
Defendant states that it offered Plaintiff accommodation for her arthritis. First, Plaintiff was offered a lighter rope rather than the bungee cord. Def's App., Ex. A, 191:10-20. Second, Defendant gave Plaintiff the option of attaching the bungee cord to her waist instead of her wrist. Def.'s App., Ex. A, 243:24-245:11. Plaintiff rejected both alternatives as demeaning.
The job description for greeter also required the greeter employee to wash the windows and doors in the foyer or vestibule of the club. Pl.'s App. at 43A. Plaintiff refused to wash the windows and doors in the Sam's Club. Def's App., Ex. 1, 33:16-17. Plaintiff claims that she could not wash the windows due to her arthritis, but in her deposition testimony, Plaintiff did not mention her arthritis, instead repeating that she "could not do that." Def.'s App., Ex. A, 69:23-70:21. Plaintiff also denied that washing windows was part of her job. Def.'s App., Ex. A, 108:17-19.
Plaintiff later provided a second note from Dr. Vine to Defendant. The note itself is undated and handwritten. Pl.'s App. at 41. The note states that "I find, as her treating physician, that [Plaintiffs polyarthritis] precludes her from work which involves cleaning windows or pulling a bungee cord. I would not recommend any strenuous activity of the hands, such as lifting or pulling or grasping more than 5 lbs. I would continue these limitations at least one year and then reevaluate." Id.
The parties dispute the reason Plaintiff provided this note and the effect it had on Plaintiffs employment. Plaintiff claims that she "considered herself able to work as a telemarketer and as a `greeter'." Pl.'s Resp. at 5. Defendant asserts that Plaintiff requested a medical leave of absence, Dr. Vine's note supported her request, and Defendant granted it. Def.'s Mot. at 18. Defendant also provides a form entitled "Request for Leave of Absence" that was dated June 17, 1998 and signed by Plaintiff and Dr. Vine. Def.'s App., Ex. J. Plaintiff was thereafter placed upon medical leave. However, Plaintiff claims that her leave was involuntary and she never requested the leave. Pl.'s App. at 194-95. Plaintiff claims that these documents were never a request to be placed on medical leave, and the Defendant's decision to place her on such leaves was involuntary and against her wishes. Id.
While on leave, Plaintiff sought employee benefits but was denied because Defendant found that she was able to perform the essential duties of her occupation. Pl.'s App. at 24-25. Her claim was rejected on July 30, 1998. Id.
Plaintiff also filed a discrimination claim on July 23, 1998 with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a Letter of Determination on August 7, 2000, finding that Defendant had violated both the ADA and the ADEA. Pl.'s App. at 2-4. This suit was subsequently filed, and now both parties move for summary judgment.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Serv's. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. Finally, the Court has no duty to search the record for friable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Proof of Discrimination
Claims under the ADA and the ADEA require a showing that an employer discriminated against an employee based upon a protected trait. The burden-shifting analysis known as the McDonnell-Douglas analysis has been applied by the Fifth Circuit to both ADA and ADEA claims. See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999) (ADA claims); 0'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996) (ADEA claims); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993) (ADEA claims).
When a plaintiff alleges discrimination, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) ( citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiffs age or disability, must have "actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome." Id. Thus, plaintiff must prove intentional discrimination either through direct evidence or indirect evidence. See Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden shifting framework. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
In order to create an inference of discrimination, the plaintiff must first establish a prima facie case of discrimination. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford, 190 F.3d at 404. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell, 235 F.3d at 222. If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id.
Since the ultimate burden of persuasion remains at all times with the plaintiff, the Supreme Court has stated that in attempting to satisfy this burden, the plaintiff — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision— must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Reeves, 530 U.S. at 143. Consequently, the Supreme Court has found that a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employee was unlawfully discriminated against. Id. at 148. However, this is not to say that a showing of pretext alone automatically would entitle an employee to a judgment as a matter of law. Id. That is, there may be instances where the employer would be entitled to judgment if the record conclusively revealed some other nondiscriminatory reason for its decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. Id. Regardless, at this summary judgment stage, Plaintiff need only raise a genuine issue of material fact. See Khanna v. Park Place Motorcars of Houston, Ltd., NO. CIV.A. 3:99-CV-0135, 2000 WL 1801850 *2 (N.D. Tex. Dec. 06, 2000) (Fitzwater, J.).
IV. Plaintiffs ADA Claim
The ADA prohibits discrimination against a qualified individual because of a disability "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112 (a). To establish a prima facie case of discrimination, a plaintiff must show that "(a) she has a disability; (b) she is a qualified individual for the job in question; and (c) an adverse employment decision was made because of her disability." Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999).
The statute defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102 (2). Here, Plaintiff alleges that her arthritis is a disability as defined by the statute and that Defendant regarded her as having a limiting impairment.
Plaintiff cannot show that she had a disability that was "a physical or mental impairment that substantially limits one or more of the major life activities." Plaintiff herself stated under oath that her arthritis did not limit her in any major life activity. "Major life activities" include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2 (i). Plaintiff testified that she could engage in all of these major life activities, except for working. Def.'s App., Ex. A, 152:22-153:23. Plaintiff is left with a claim that she could not work because of her arthritis. However, "[w]hen the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. . . . `The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working'." Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)).
Plaintiff alleges that her arthritis prevented her from working as a greeter. There is no allegation that she was unable to work other jobs, or other jobs for Defendant. All of the evidence concerns her inability to use the bungee cord and to wash windows. Because Plaintiff has only shown that her arthritis prevented her from working as a greeter, the Court finds that she was not substantially limited in a major life activity by her impairment. Therefore, Plaintiffs argument of an actual disability fails.
The second definition of disability looks to whether a plaintiff has a "record of physical impairment." Plaintiff does not argue in any of the motion papers that she has a record of impairment.
Plaintiff does argue that Defendant "regarded" her as having a disabling impairment. The Supreme Court has noted that "[t]here are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton, 527 U.S. at 489. Plaintiff's claim is one of the second kind. Plaintiff had an impairment— arthritis— but as the Court has already decided, it was not a limiting impairment. However, Plaintiff alleges that Defendant "regarded" her as having a disability because Defendant received two notes from her doctor regarding her arthritis and limitations on her work.
Although Plaintiff can show that Defendant regarded her as impaired in some way, the only evidence demonstrates only that Defendant believed that Plaintiff could not use a bungee cord or wash windows. As noted above, this prong of the prima facie case requires that the Defendant regarded Plaintiff as "substantially limited in one or more major life activities." As noted above, these life activities include things like caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. There is no evidence that demonstrates that Defendant regarded Plaintiff as being limited in any of these activities. Even if Defendant regarded Plaintiff as being limited in her ability to work, the only evidence shows that Defendant may have regarded Plaintiff as unable to perform the job of greeter. There is no evidence that Wal-Mart considered Plaintiff unable to work in a broad range of jobs. Therefore, the Court finds that Defendant did not "regard" Plaintiff as disabled under the ADA.
Therefore, Plaintiff was not disabled as defined by the ADA, did not have a record of a disability, and Defendant did not regard Plaintiff as disabled. For these reasons, the Court finds that Plaintiffs ADA claim fails because she cannot show the first requirement of a prima facie case as required by the statute.
Therefore, the Court GRANTS Defendant's motion for summary judgment as to Plaintiffs ADA claim, and DENIES Plaintiffs motion for summary judgment on this claim.
V. Plaintiff's ADEA Claim
The ADEA prohibits discrimination based upon age. A prima facie case claim under the ADEA is established if the plaintiff provides evidence that she: (1) was discharged; (2) was qualified for the position; (3) was within the protected age class— over 40— at the time of discharge; and (4) was either replaced by a younger person or by a person outside the protected class, or otherwise discharged because of her age. Stults v. Conoco, Inc., 76 F.3d 651, 656 n. 2 (5th Cir. 1996).
Plaintiff alleges multiple occasions of age discrimination. Plaintiff argues that her first move from telemarketer to greeter entailed discrimination against her based upon her age. Plaintiff argues that Defendant discriminated against her when Georgia Weimar returned to the marketing division in February of 1998. Plaintiff also alleges that she was discriminated against when Lee Harris was hired to fill the telemarketer position. Plaintiff further claims that her placement on medical leave was due to her age. In fact, Plaintiff alleges that her age was a factor in several of Wal-Mart's employment decisions. "Plaintiff was not simply terminated because of her age. The discriminatory action takes a more circuitous route. She was transferred from one job, deemed physically incapable of performing her next job, and then put on medical leave while a younger employee— Weimar— filled her original job and then transferred to another desk job in the same department." Pl.'s Amend. Brief in Support of Pl.'s Resp. to Def.'s Mot. for Summ. J. at II.
Plaintiff has alleged a prima facie case of discrimination as to the first instance of alleged discrimination. Plaintiff is a member of the protected class; she was 77 when she was transferred to the greeter position. Plaintiff was qualified to work as a telemarketer, and Defendant does not dispute this. When Plaintiff was transferred, a 31-year-old remained in the telemarketer position.
Defendant, however, has provided an adequate nondiscriminatory reason for Plaintiff's transfer. The marketing division reduction-in-force was a company-wide, nationwide action. Def.'s App., Ex. G. Such a reduction-in-force can be a legally sufficient explanation for Plaintiffs transfer. Bodenheimer, 5 F.3d at 957-58. Plaintiff can only create a fact issue if she shows that she was "clearly better qualified" than her younger replacement. Id. at 959. While Plaintiff provides evidence of both her and Hickman's evaluations, there is no showing that Plaintiff was "clearly" more qualified than Hickman, and in fact, it appears that Hickman's evaluations were superior to Plaintiffs. Cf. Pl.'s App. at 49-84 (Plaintiffs' evaluations) with Pl.'s App. at 129-36 (Hickman's evaluations). Defendant has demonstrated a nondiscriminatory reason for transferring Plaintiff to greeter, and Plaintiff has provided no evidence of pretext. Plaintiffs counsel acknowledged at the pretrial conference that she was not pursuing this claim. Accordingly, the Court GRANTS Defendant's motion as to this first claim of age discrimination.
Plaintiff has failed to show a prima facie case of discrimination for Defendant's hiring of Lee Harris to fill the telemarketing position in June of 1998. First, Plaintiff admits that she did not apply for the position and in fact encouraged Harris to apply. Def.'s App., Ex. A, 122:7-12; 123:20-22. Second, Harris was also a member of the protected class, and while younger, was only five years younger than Plaintiff. Therefore, Defendant's motion as to this instance of age discrimination is GRANTED. Further, Plaintiffs counsel stated at the pretrial conference that she was not pursing this claim.
Plaintiff also alleges that she was discriminated against when Georgia Weimar was returned to the telemarketer position in February 1998. Plaintiff again has alleged a prima facie case of discrimination. She was a qualified member of the protected class. Here, Weimar is also in the protected class, but she is younger than Plaintiff by 23 years.
Defendant rebuts Plaintiffs claim in two ways. First, Defendant argues that Plaintiff admitted that she never reapplied for the telemarketer position. Defendant cites testimony regarding a June 1998 opening in the marketing department that was filled by Lee Harris. Def.'s App., Ex. A, 122:7-12; 123:20-22. However, in papers presented to the EEOC, Wal-Mart stated that Plaintiff reapplied for the telemarketing job in January or February 1998. Pl.'s App. at 169. However, during the same period, on February 28, 1998, Weimar was "keyed into" the telemarketing position. Pl.'s App. at 181.
The Court ordered supplemental briefing on this point and the parties deposed Georgia Weimar in an attempt to resolve the question of who was employed as a telemarketer at what point during the course of the period in dispute. Weimar testified that she was never formally transferred back to the position of telemarketer. Weimar Depo., p. 7-8. Weimar also stated that she was unaware of a vacancy in the telemarketer position between the reorganization and the time Linda Hickman resigned. Id. However, there is still a gap in the chronology and a period where it appears there was a vacancy in the position of telemarketer between March and May of 1998. In March of 1998, Hickman transferred into the job of advantage coordinator. Pl.'s App. at 108, 181. According to these same documents, Hickman resigned on May 25, 1998. Id. Given Radcliffs request to return to the position, the Court finds that Wal-Mart has failed to provide an explanation for this chronology of events.
The Court finds that Defendant has not rebutted Plaintiff's prima facie case of discrimination for Weimar's return to the telemarketing position after Plaintiff had been denied a return. Defendant has not provided a satisfactory explanation to rebut the inference of discrimination. Therefore, the Court finds that a fact issue remains, and DENIES Defendant's motion as to this instance of age discrimination.
Finally, Plaintiff argues that her placement on medical leave was further discrimination based upon her age. As noted above, the parties dispute the circumstances surrounding Plaintiffs placement on medical leave. Defendant's position is that Plaintiff requested medical leave and provided medical documentation of her inability to perform two functions of the greeter job, wearing a bungee cord and washing windows. Plaintiff argues that she was involuntarily placed on leave. The Court finds that there is a question of fact as to whether or not Plaintiff was involuntarily placed on leave and therefore no conclusion as to whether Plaintiff suffered an adverse employment action can be made as a matter of law. Accordingly, the Court DENIES Defendant's motion for summary judgment as to Plaintiffs ADEA claim based upon her placement on medical leave.
VI. Plaintiff's Retaliation Claim
Plaintiff claims that Defendant retaliated against her in violation of the ADA for bringing the EEOC complaint. To succeed, Plaintiff must establish: (1) engagement in an activity protected by the ADA; (2) an adverse employment action; and (3) a causal connection between the protected act and the adverse action." Seaman, 179 F.3d at 301.
Plaintiff was placed on medical leave on June 17, 1998 and filed her EEOC Complaint on July 23, 1998. In her Charge of Discrimination, Plaintiff asserts that she was denied the opportunity to be reconsidered for the job of telemarketer on July 13, 1998. Pl's App. at 8. Defendant denies that Plaintiff reapplied for the position. Plaintiff alleges that she requested to be returned to the greeter position in January 1999, a time after which Defendant had eliminated the requirement that greeters wear bungee cords. Plaintiff also alleges that there was an opening for a telemarketer in August of 1998. Plaintiff alleges that Defendant's failure to bring her back for one of these positions was related to Plaintiffs filing allegations of discrimination with the EEOC.
Although she was placed on leave, Defendant contends that Plaintiff never applied for or contacted Defendant while on leave to request re-employment. Defendant further argues that Plaintiff never provided any documentation to Defendant regarding her ability to perform the greeter tasks. Def.'s App., Ex. A, 221:10-13, and Plaintiff stated in her deposition testimony that she never contacted Defendant again seeking reinstatement after being placed on leave. Id. at 259:21-260:2.
The Court finds that the ambiguity regarding Plaintiffs placement on leave complicates the resolution of this claim. If Plaintiff was involuntarily placed on leave, as she alleges, she may have considered herself terminated and not realized she needed to apply again to come back. From this perspective, the telemarketer and greeter positions that became available were opportunities that were denied to Plaintiff because she had been placed on leave against her will, and Plaintiff alleges that she was denied such opportunities because she had complained of discrimination to the EEOC.
If, however, Plaintiff did request the leave, though, then she perhaps bears a greater responsibility to notify Wal-Mart of her status and to attempt to find alternative positions that she could fill. It is unclear and there is no indication of Wal-Mart's policy regarding employees on leave. Plaintiff fails to cite any legal authority to indicate that Defendant had an obligation to offer Plaintiff positions while she was on voluntary leave.
Because the Court cannot resolve these questions without more evidence regarding Plaintiffs placement on leave, the Court DENIES Defendant's motion for summary judgment on Plaintiffs retaliation claim.
VII. Plaintiff's Intentional Infliction of Emotional Distress Claim
Plaintiffs last claim is for intentional infliction of emotional distress. To recover for intentional infliction of emotional distress, a plaintiff must prove that (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). In Twyman, the Texas Supreme Court adopted the Restatement's formulation of the tort of intentional infliction of emotional distress, including the definition of extreme and outrageous conduct as conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Restatement (Second) of Torts §§ 46 cmt. d (1965)); see also Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993).
It is only in "the most unusual cases" that an employer's conduct may be regarded as so extreme and outrageous that it gives rise to a claim for intentional infliction of emotional distress. Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (citing Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)). Thus, such a claim normally does not lie for "mere employment disputes." MacArthur v. University of Tex. Health Ctr., 45 F.3d 890, 898 (5th Cir. 1995); Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir. 1992) (per curiam). Here, Plaintiff has failed to establish any behavior that would reach the level of "extreme and outrageous" to allow an intentional infliction of emotional distress claim. Plaintiff has alleged nothing more than a typical employment dispute. Therefore, the Court GRANTS Defendant's motion for Plaintiffs intentional infliction of emotional distress claim.
Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment, and DENIES Plaintiffs Motion for Partial Summary Judgment.