Bethany Reynolds v. Ethicon Endo-Surgery ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3534
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Bethany Reynolds, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Ethicon Endo-Surgery, Inc.; *
Dave Burns, *
*
Appellees. *
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Submitted: May 19, 2006
Filed: July 21, 2006
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Before MURPHY, BEAM, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Bethany A. Reynolds sued her former employer, Ethicon Endo-Surgery, Inc.
(Ethicon), for violating Title VII of the Civil Rights Act. She also sued Ethicon and
her supervisor, David E. Burns, for intentional infliction of emotional distress and
negligent infliction of emotional distress. The district court1 granted summary
judgment to Ethicon and Burns. Reynolds appeals. Jurisdiction being proper under
28 U.S.C. § 1291, this court affirms.
1
The Honorable Karen E. Schreier, Chief United States District Judge for the
District of South Dakota.
I.
In June 1999, Reynolds began working for Ethicon as a sales representative.
In January 2002, Reynolds was transferred to a new division selling medical
equipment for bariatric weight-loss surgery. Reynolds became a bariatric account
manager (BAM) based in Sioux Falls, South Dakota, with a sales territory in the
Dakotas, Minnesota, and parts of Wisconsin. A few months after she became a BAM,
Ethicon reorganized the sales territories. Reynolds lost Minnesota and Wisconsin, but
added Iowa to her territory.
Shortly after this change, Ethicon management met to discuss further
expansion. A report was presented, weighing the "comparative business conditions"
of 210 American markets. The report lists each market's total population, its
estimated obese population, and whether a BAM was assigned. Sioux Falls, where
Reynolds was based, ranks 120 on the list, the lowest-ranked market with a BAM.
The second-lowest with a BAM – Las Vegas, Nevada – was 52 on the list.
Reynolds' immediate supervisor (Burns) and other Ethicon representatives
discussed eliminating the Sioux Falls territory and instead basing a BAM in
Louisville, Kentucky. On August 13, 2002, Reynolds' territory was discussed and it
was determined she would be offered a Louisville BAM position. On August 26,
Burns emailed human-resources stating that he would proceed with a "territory
collapse," necessitating either a separation or relocation package for Reynolds.
On September 4, Reynolds learned she was pregnant. The same day she told
Burns about the pregnancy. Reynolds alleges that Burns congratulated her but said
to "keep that information to themselves." Additionally, Burns told Reynolds to meet
him in Sioux Falls on September 11, seven days earlier than originally planned, to
review her performance evaluation. During that meeting Burns informed Reynolds
about the elimination of her specific territory and gave her a letter detailing a
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relocation package and transfer to Louisville, or alternatively, a severance package.
If she accepted relocation, Reynolds would maintain the same title, pay and
advancement prospects as she had as the Sioux Falls BAM. Reynolds had from
September 18 to 20 in order to decide; if she chose severance, her last day of work
was October 28. Between September 16 and 18, Reynolds was also offered the option
of taking the BAM position in St. Louis.
Reynolds told Ethicon she would not make a decision until after her baby was
born. Her due date was May 1, 2003; however, in late September she suffered a
miscarriage. Reynolds claims the elimination of her position and the manner of
notification caused the miscarriage and subsequent diagnosis of depression.
On October 22, Ethicon informed Reynolds that the options to transfer
remained open. Ethicon also extended her last day from October 28 to November 28,
2002. Reynolds was eventually terminated because she refused to transfer.
II.
This court reviews the grant of summary judgment de novo, viewing the facts
most favorably to the non-moving party. See McClure v. Career Sys. Dev. Corp., 447
F.3d 1133, 1136 (8th Cir. 2006); Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617,
619 (8th Cir. 2006). Summary judgment is appropriate if the records “show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56 (c); see Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The respondent must
do more than rely on "allegations or denials in the pleadings, and the court should
grant summary judgment if any essential element of the prima facie case is not
supported by specific facts sufficient to raise a genuine issue for trial." Hesse v. Avis
Rent A Car Sys., Inc., 394 F.3d 624, 629 (8th Cir. 2005), citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
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Title VII of the Civil Rights Act of 1964 prohibits discrimination against an
employee with respect to their compensation, terms, conditions, or privileges of
employment, because of race, color, religion, sex or national origin. See 42 U.S.C.
§ 2000e-2(a)(1) (2004). Because Reynolds does not present direct evidence of
discrimination, this court analyses the case under the burden-shifting standard in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Griffith v. City of Des
Monies, 387 F.3d 733, 736-37 (8th Cir. 2004). Under this framework, the plaintiff
has the initial burden of establishing a prima facie case of discrimination. See
McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 518 (1993).
Reynolds must first demonstrate that she is within a protected class, qualified
to perform her job, suffered an adverse employment action, and was treated differently
from similarly-situated employees. See McDonnell Douglas, 411 U.S. at 802. See
also Hesse, 394 F.3d at 631, citing Schoffstall v. Henderson, 223 F.3d 818, 825 (8th
Cir. 2000).
Reynolds is within a protected class and qualified to perform her job. The
parties dispute whether she suffered an adverse employment action in circumstances
which allow a court to infer unlawful discrimination. See McLaughlin v. Esselte
Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995). An adverse employment action
is a "tangible change in working conditions that produces a material employment
disadvantage." Jones v. Reliant Energy-ARKLA, 336 F.3d 689, 691 (8th Cir. 2003).
Reynolds repeatedly cites the proposition that whether there is an adverse action
is an issue of fact for the jury. See MacGregor v. Mallinckrodt, Inc., 373 F.3d 923,
928 (8th Cir. 2004). This proposition assumes that specific facts support the element
of an adverse action sufficient to raise a genuine issue for the jury. See Hesse, 394
F.3d at 629.
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Reynolds claims that her separation is "beyond dispute" an adverse employment
action. She relies on MacGregor, which holds that "where an employer offers to
substitute a new job for one that has been eliminated, the employee's rejection of the
new job does not necessarily indicate that the employee has resigned." MacGregor,
373 F.3d at 928. The key to MacGregor is that the position offered was "sufficiently
inferior to constitute an adverse action." Id. at 929. Reynolds does not dispute that
she was offered a lateral transfer with the same job title, salary and advancement
prospects as the job she held in Sioux Falls. Reynolds voluntary rejected equivalent
positions, even when Ethicon extended the decision deadline for weeks after she
miscarried. Although Reynolds would have preferred to remain in Sioux Falls, the
employer's disregard of this preference is not an adverse employment action.2 See
Gartman v. Gencorp Inc., 120 F.3d 127, 130 (8th Cir. 1997) (reversing verdict for an
employee forced to choose between resigning and transferring to a position with the
same title, duties, pay and benefits, because the transfer offer was not an adverse
action).
Alternatively, Reynolds claims that the May and June elimination of Minnesota
and Wisconsin from her sales territory, in itself, is an adverse action. However, in
both her charge of discrimination and her complaint in this case, she failed to allege
anything about this change. Her charge and complaint are restricted to events between
August and November 2002. "Ordinarily, we do not consider an argument raised for
the first time on appeal. We consider a newly raised argument only if it is purely legal
and requires no additional factual development, or if a manifest injustice would
otherwise result." Berkley v. Dillard's Inc., 450 F.3d 775, 778 (8th Cir. 2006),
quoting Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002) (internal
2
In her reply brief to this court, Reynolds asserts for the first time that a transfer
to Louisville would be a sufficiently inferior position because her pay, in part, was
based on commissions and because she was not as familiar with Louisville as with
Sioux Falls. To the contrary, the record supports that her pay and other benefits in
Louisville (or St. Louis) would be the same as in Sioux Falls.
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citations omitted). See generally Harlston v. McDonnell Douglas Corp., 37 F.3d
379, 382 (8th Cir. 1994).
Because Reynolds has not proven that she suffered an adverse employment
action, her Title VII claim fails.
III.
Reynolds also asserts that Ethicon and Burns are liable for intentional infliction
of emotional distress (IIED) for informing her about the elimination and relocation in
a distressing manner. She claims that Burns, knowing she was pregnant, continued
to let her believe the purpose of their September 11th meeting was to review her
performance. Instead, Burns then notified Reynolds about the elimination of her
territory and possible relocation. As a result of Burns' conduct, Reynolds asserts she
suffered a miscarriage and sought treatment for depressive symptoms, all proximately
caused by the stress she endured.
Under South Dakota law, the elements of intentional infliction of emotional
distress are:
(1) an act by defendant amounting to extreme or outrageous conduct;
(2) intent on the part of the defendant to cause plaintiff severe emotional
distress;
(3) the defendant's conduct was the cause in-fact of plaintiff's injuries;
and
(4) the plaintiff suffered an extreme disabling emotional response to
defendant's conduct.
Petersen v. Sioux Valley Hosp. Ass'n, 486 N.W.2d 516, 518 (S.D. 1992).
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In South Dakota, following the Restatement (Second) of Torts, "the conduct
necessary to form intentional infliction of emotional distress must be 'so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and be regarded as atrocious, and utterly intolerable in a civilized
community.'" Harris v. Jefferson Partners, L.P., 653 N.W.2d 496, 500 (S.D. 2002),
quoting Richardson v. East River Elec. Power Coop., 531 N.W.2d 23, 27 (S.D.
1995). The IIEP tort "imposes liability on the defendant for intentional and reckless
conduct resulting in emotional distress." Petersen v. Sioux Valley Hosp. Ass'n, 491
N.W.2d 467, 468 (S.D. 1992).
One basis for such extreme and outrageous conduct is "the defendant's
knowledge that the plaintiff is especially sensitive, susceptible, and vulnerable to
injury through mental distress at the particular conduct." Harris, 653 N.W.2d at 502,
quoting The Law of Torts § 12, 62 (5th ed 1984). The facts of this case do not
support the tort. Unlike Moysis v. DTG Datanet, 278 F.3d 819, 827 (8th Cir. 2002),
where the employer knew that plaintiff's medical condition made him particularly
vulnerable to emotional distress, Reynolds did not suffer from a severe medical
problem making her vulnerable to emotional distress. See Wangen v. Knudson, 428
N.W.2d 242, 248 (S.D. 1988) (finding IIED where employer knew employee was
recently hospitalized for depression but terminated him under the pretense that
employee failed to attend alcohol treatment). Nor does Reynolds even allege that
Burns was hostile to her when notifying her about the elimination of her territory and
possible relocation. While termination from a job may be upsetting, this does not in
itself constitute extreme or outrageous conduct. See Richardson, 531 N.W.2d at 29.
Reynolds has not proven a prima facie case of intentional infliction of emotional
distress.
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IV.
Reynolds asserts a negligent infliction of emotional distress claim, based on the
same evidence invoked for IIED. To prove this claim, a plaintiff must prove (1)
negligent conduct on the part of the defendant, (2) emotional distress suffered by the
plaintiff, and (3) physical manifestations suffered by the plaintiff from the distress.
See Nelson v. WEB Water Dev. Ass'n, 507 N.W.2d 691 (S.D. 1993). "The three
necessary elements of actionable negligence are: (1) A duty on the part of the
defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting
from such a failure." Blaha v. Stuard, 640 N.W.2d 85, 90 (S.D. 2002), quoting
Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D. 1988). Reynolds fails to
identify a duty that Ethicon or Burns owed her. In an employment-at-will state like
South Dakota, the employer owes no duty of continued employment, and therefore
may dismiss the employee at any time, for any reason, as long as an employment
contract, a statute, or public policy does not indicate otherwise. See Aberle v. City of
Aberdeen, 2006 SD 60, ¶¶ 20-21, 2006 WL 1851020; Hollander v. Douglas County,
620 N.W.2d 181, 185 (S.D. 2000). See also S. D. Codified Laws § 60-4-4. The
district court correctly granted summary judgment on this claim.
V.
The judgment of the district court is affirmed.
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