Free Motion for Summary Judgment - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Elizabeth A. Petersen (#018377) Robert G. Vaught (#020717) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6378 [email protected] [email protected] Attorneys for Defendant DriveTime Automotive Group IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Debra Jilka, Plaintiff, v. DriveTime Automotive Group aka Ugly Duckling Corporation, Defendant. DEFENDANT DRIVETIME AUTOMOTIVE GROUP'S MOTION FOR SUMMARY JUDGMENT No. CV-03-1369-PHX-MHM

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Pursuant to Fed. R. Civ. P. 56, Defendant DriveTime Automotive Group, aka Ugly Duckling Corporation ("DriveTime"), respectfully asks the Court to enter summary judgment in its favor. Plaintiff Debra Jilka cannot meet her burden to establish a claim for age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 623-634 ("ADEA"), or discrimination under the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq. ("FMLA"). This Motion is supported by the following Memorandum of Points and Authorities, the Statement of Facts ("SOF") filed contemporaneously herewith and the Court's entire file in this matter, all of which are incorporated herein by reference.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND On September 24, 2001, DriveTime hired Plaintiff Debra Jilka as Regional Mediator in the Customer Relations Department. (SOF ¶ 1.) On October 14, 2002, Ms. Jilka was counseled because she had used up her allotted "Paid Time Off" ("PTO") for the year, resulting in an unexcused absence, and for being tardy more than ten times since August 1, 2002. (SOF ¶ 2.) On November 22, 2002, Ms. Jilka and her supervisor, Ruth Leatherman, reviewed her written annual Performance Review. (SOF ¶ 3.) The Performance Review noted that Ms. Jilka's attendance was unsatisfactory. (SOF ¶ 4.) In addition, Ms. Jilka was

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impersonal and indifferent, and had difficulty interfacing with customers and co-workers. (SOF ¶ 5.) Ms. Jilka testified that she was aware of the issues raised in her Performance Review, and that she did not feel that she was being discriminated against or harassed in any way by Ms. Leatherman in pointing out these issues. (SOF ¶ 6.) On January 16, 2003, Ms. Jilka was written up for failing to follow up properly on two legal matters involving customers. (SOF ¶ 7.) As a result, additional and

unnecessary follow-up was required from other employees. (SOF ¶ 8.) Ms. Jilka's response to this write up was: "What's done is done and will not happen again." (SOF ¶ 9.) On February 26, 2003, a customer contacted the Customer Service Supervisor to complain that Ms. Jilka had been rude and unprofessional to him. (SOF ¶ 10.) On March 5, 2003, Ms. Jilka was written up after another employee complained that she had insulted him by falsely stating that he was a drug user in front of other employees. (SOF ¶ 11.) Ms. Jilka agreed that her comment was inappropriate, and that she should have been written up. (SOF ¶ 12.)

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Under the DriveTime PTO policy, Ms. Jilka was entitled to five hours off for each pay period. (SOF ¶ 13.) Thus, by March 19, 2003, Ms. Jilka was entitled to only 25 hours off. (SOF ¶ 14.) In addition, if Ms. Jilka had sought and obtained prior approval from management for vacation or personal reasons, she could have borrowed up to an additional 40 hours. (SOF ¶ 15.) Thus, even assuming Ms. Jilka properly sought and obtained pre-approval from management (which she did not), her total available PTO hours as of March 19, 2003, was 65, or 8 days and one hour. (SOF ¶ 16.) On February 10, 2003, Ms. Jilka had taken leave pursuant to the FMLA for five days, until February 14, 2003. (SOF ¶ 17.). As of March 19, 2003, Ms. Jilka had been absent nine other days not covered by FMLA, had been tardy twice, and left early once. (SOF ¶ 18.). As a result, on March 19, 2003, Ms. Jilka was properly written up for violating the DriveTime attendance policy. (SOF ¶ 19.) Ms. Jilka's five FMLA days were inadvertently included in the write up. (SOF ¶ 20.) Once this was brought to DriveTime's attention, the FMLA days were immediately removed from the write up. (SOF ¶ 21.) However, because Ms. Jilka had exceeded her allocated PTO time notwithstanding FMLA days, she would have been written up anyway. (SOF ¶ 22.) During her discussion with Ms. Leatherman about her absenteeism and tardiness, Ms. Leatherman allegedly told Ms. Jilka that several other people were written up the previous week for attendance issues, and that Ms. Jilka "probably heard them talk about it on the floor." (SOF ¶ 23.) Ms. Jilka freely admitted in her deposition that she was already aware that several people had been written up. (SOF ¶ 24.) Ms. Jilka then complained to Brandie Anslow, DriveTime's Human Resources Director, and Eileen Hickey, the Director of Retail Operations and Ms. Leatherman's supervisor, about these comments, noting specifically that "if we believe in integrity and accountability, let's start with certain members of management." (SOF ¶ 25.) Ms. Jilka testified that she was specifically referring to Ms. Leatherman. (SOF ¶ 26.)

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Because of the numerous performance issues and Ms. Jilka's continuing inability to get along with customers, co-workers and especially her supervisor, Ms. Anslow and Ms. Leatherman elected to terminate Ms. Jilka on March 21, 2003. (SOF ¶ 27.) At no time was Ms. Jilka's age or attendance ever raised as an issue that contributed to her termination. (SOF ¶ 28.) Ms. Jilka was terminated solely for poor performance. (SOF ¶ 29.) As set forth more fully below, Ms. Jilka has not presented sufficient evidence to survive DriveTime's Motion for Summary Judgment. Ms. Jilka testified that the sole basis for her age discrimination claim is that she was terminated and replaced by a younger employee. (SOF ¶ 30.) Ms. Jilka has never claimed that her supervisors or anyone else at DriveTime demonstrated any type of age animosity. Ms. Jilka even asked Ms.

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Leatherman to join her discrimination lawsuit after Ms. Leatherman's employment with DriveTime ended. (SOF ¶ 31.) In addition, the sole basis for Ms. Jilka's FMLA claim is that the March 19, 2003 write up referenced days that were covered under her FMLA policy. (SOF ¶ 32.)

However, Ms. Jilka never complained about that reference while she was employed at DriveTime. (SOF ¶ 33.) Once Ms. Jilka raised the issue, DriveTime corrected its records to reflect the number of days absent, not including the FMLA days. (SOF ¶ 21.) Even without consideration of the FMLA days, Ms. Jilka had exhausted her PTO time, and was subject to a Performance Review and write up. Ms. Jilka's absenteeism was not a factor in her termination. Ms. Jilka was terminated for her poor performance, as noted above.

II.

MS. JILKA CANNOT PROVIDE ANY MATERIAL FACTS TO PRECLUDE SUMMARY JUDGMENT. A. Ms. Jilka has not Presented Sufficient Evidence to Sustain a Claim for Age Discrimination.

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To survive summary judgment on her age discrimination claim, Ms. Jilka must first establish a prima facie case pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To demonstrate a prima facie case of age discrimination, Ms. Jilka must show that she was: (1) a member of the protected class, (2) performing her job in a satisfactory manner, (3) discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications. Id.; see also O'Connor v. Consolidated Coin

Caterers Corp., 517 U.S. 308 (1996); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996). If Ms. Jilka establishes a prima facie case of age discrimination, DriveTime may then articulate a legitimate, nondiscriminatory reason for her termination. The burden then shifts back to Ms. Jilka to produce "specific substantial evidence of pretext," proving that more likely than not, the adverse employment action was motivated by age discrimination. A mere allegation of age discrimination is insufficient. Rather, Ms. Jilka must prove that DriveTime intentionally and purposefully acted with an illegal motive when it decided to terminate her. See United States Postal Service v. Aikens, 460 U.S. 711 (1983); Gay v. Waiter's and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1983); Criswell v. Western Airlines, Inc., 709 F.2d 544 (9th Cir. 1983). Finally, even if pretext is proved, Ms. Jilka must then prove that she has, in fact, been damaged by DriveTime's conduct. 1. Ms. Jilka Cannot Establish a Prima Facie Case of Discrimination.

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Ms. Jilka cannot establish the second element of her prima facie case, i.e., that she was performing her job in a satisfactory manner. To satisfy this element, Ms. Jilka would have to show that she "was performing her job at a level that met her employer's legitimate expectations." Miller v. Citizens Security Croup, Inc., 116 F.3d 343 (8th Cir. 1997), quoting Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir. 1982); Crawford

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

v. MCI Worldcom Communications, 167 F.Supp.2d 1128, 1132-33 (S.D.Cal. 2001). Additionally, Ms. Jilka must show that she was meeting DriveTime's expectations at the time of the employment action and therefore may not rely on evidence - such as evaluations, promotions, reviews, etc. - which are outdated or far removed in time from the employment action. Miller, 116 F.3d at 346. The undisputed evidence demonstrates that Ms. Jilka was not performing her job at a satisfactory level, and that her poor performance lead to her termination. b. Ms. Jilka Cannot Produce "Specific, Substantial Evidence" That DriveTime's Proffered Reasons Are Pretextual.

Even if Ms. Jilka has presented enough evidence to establish a prima facie case of discrimination, DriveTime has articulated a legitimate, non-discriminatory reason for its decision to terminate her employment. Therefore, Ms. Jilka must prove by a

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preponderance of evidence that these reasons are not the true reasons, but instead a pretext for discrimination. Texas Dep't of Cmty' Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Nesbit v. Pepsico Inc., 994 F.2d 703 (9th Cir. 1993). In Nesbit, the United States Court of Appeals for the Ninth Circuit illustrated the high standard of proof a plaintiff must meet to survive summary judgment on the issue of pretext. The plaintiff in Nesbit argued that the cumulative effect of the following led to an inference of age discrimination: (1) statistical evidence that some older workers were terminated while some younger workers were retained, and that the employees hired after a reduction in force were generally younger than those terminated; a comment by Nesbit's direct supervisor that "[w]e don't necessarily like gray hair"; and an interview of Pepsico's Senior Vice President of Personnel in which she stated "[w]e don't want unpromotable 50-year-olds around."

(2) (3)

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Nesbit, 994 F.2d at 704-05. The Court held that this evidence failed to demonstrate that the plaintiff's discharge occurred under circumstances leading to an inference of age discrimination. Id. at 705. The evidence offered by Ms. Jilka to support her claim of age discrimination is even less persuasive. Here, Ms. Jilka testified that the sole basis for her age

discrimination claim is that she was terminated and replaced by a younger employee. (SOF ¶ 30.) Ms. Jilka has never claimed that Ms. Leatherman or anyone else at

DriveTime demonstrated any type of age animosity. In Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996), the United States Court of Appeals for the Ninth Circuit affirmed summary judgment for the employer finding that a comment by a district supervisor that he intended to get rid of all the "old timers" because they would not "kiss his ass" did not create inference of discrimination. Id. at 918-19. The Court found it significant that the comment was not directly tied to the adverse employment action. Id. at 919. The Court held that the evidence was "weak" and "not enough to create an inference of age discrimination." Id.; see also Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990); Willis v. Marion County Auditor's Office, 118 F.3d 542, (7th Cir. 1997) (court properly set aside jury verdict when no evidence was presented that the decision-maker harbored race-based animus toward plaintiff). Finally, the decision-maker in this matter was over 40 years old. (SOF ¶ 34.) When the decision-maker is close in age to the plaintiff and is also within the protected category, the inference of discrimination is diminished. Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir. 1998). The primary player behind Ms. Jilka's termination, Ms. Leatherman, is within the class of people protected by the ADEA. This makes them "more likely to be the victims of age discrimination than its perpetrators." Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991). Thus, given the

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decision-maker's age, it is less likely that Ms. Jilka's discharge was motivated by ageist animus. 2. Ms. Jilka has not Presented Sufficient Evidence to Sustain a Claim Under the Family Medical Leave Act.

The sole basis for Ms. Jilka's FMLA claim is that the March 19, 2003 write up referenced days that were covered under her FMLA policy. (SOF ¶ 32.) However, Ms. Jilka did not complain about that reference while she was employed at DriveTime, and once she raised the issue, DriveTime corrected its records to reflect the number of days absent, not including the FMLA days. (SOF ¶ 21.) Most importantly, even without consideration of the FMLA days, Ms. Jilka had exhausted her PTO time, and was subject to a Performance Review and write up. Ms. Jilka filed a Complaint with the Department of Labor alleging that DriveTime violated the FMLA by terminating her. (SOF ¶ 35.) The Department of Labor WageHour Investigator, Thomas C. Hull, fully investigated this charge, and concluded that DriveTime did not violate the FMLA. Mr. Hull concluded that DriveTime was within its rights in terminating Ms. Jilka, as the decision to terminate her employment was not made based upon her FMLA leave, nor was Ms. Jilka treated disparately for taking a leave pursuant to FMLA. (SOF ¶ 36.) Ms. Jilka was terminated for poor performance, as noted above. 3. Ms. Jilka has not Presented Any Evidence to Support her Alleged Damages.

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All damages must be established with reasonable certainty. Damages that are speculative, remote or uncertain, may not be awarded. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900, 81 L.2d 2d 732, 104 S. Ct. 2803 (1984); Coury Bros. Ranches., Inc. v. Ellsworth, 103 Ariz. 515, 446 P.2d 458, 464 (1968). Pursuant to 42 U.S.C. §2000e-5(g), interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. In

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addition, Ms. Jilka is not entitled to damages under the FMLA unless she presents sufficient evidence of actual, monetary loss suffered as a result of DriveTime's alleged FMLA violation. See 29, U.S.C. § 2617(a). Ms. Jilka has presented absolutely no evidence that she suffered any actual damage as a result of DriveTime's conduct. As such, Ms. Jilka should be precluded from seeking monetary damages, including back pay or lost wages, should this matter go to trial. III. CONCLUSION Ms. Jilka has failed to meet her burden to establish a claim for age discrimination. The undisputed facts demonstrate that Ms. Jilka was terminated for poor job performance. Neither Ms. Jilka's age nor her attendance played any role in the decision to terminate her employment. For the foregoing reasons, DriveTime respectfully asks this Court to grant its Motion for Summary Judgment.

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RESPECTFULLY SUBMITTED this 29th day of August, 2005. SNELL & WILMER L.L.P.

By: s/Elizabeth A. Peterson Elizabeth A. Petersen Robert G. Vaught One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Defendant DriveTime

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ORIGINAL of the foregoing filed electronically with the Clerk of the U.S. District Court this 29th day of August, 2005. I hereby certify that on August 29, 2005, I served the attached document by mail, on the following, who is not a registered participant of the CM/ECF System: Debra Jilka 1738 W 6th Ave. Mesa, AZ 85202 480-969-7263 Pro Per s/Crystal Olton
26785.0149\VAUGHTR\PHX\1716120.1

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