                                                                  PUBLISH


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                            _______________                    FILED
                                                    U.S. COURT OF APPEALS
                              No. 99-10917            ELEVENTH CIRCUIT
                            _______________                DEC 26, 2000
                                                       THOMAS K. KAHN
                  D. C. Docket No.   97-00908-1-CV-ODE      CLERK



CATHY D. DURLEY,
JAMES DURLEY,

                                         Plaintiffs-Appellants,

     versus

APAC, INC.,
THEODORE J. RAPALLO,

                                         Defendants-Appellees,

DOUGLAS C. BAIR,

                                     Defendant.
                   ______________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                  ______________________________
                            (December 26, 2000)


Before BIRCH, FAY and KRAVITCH, Circuit Judges.
BIRCH, Circuit Judge:

      This case presents the question of whether, in a Title VII sex discrimination

suit, appellant Cathy Durley presented evidence of pretext sufficient to create a

question of fact for the jury. We hold that she did, and accordingly AFFIRM IN

PART and REVERSE IN PART the district court’s grant of summary judgment.

                                   I. BACKGROUND

      Durley brought suit against her employer, APAC, Inc. (“APAC”), and her

supervisor, Theodore Rapallo, alleging sex discrimination, violation of the

Americans with Disabilities Act (“ADA”), and retaliation for the filing of an

EEOC charge.1 Durley also asserted a state law claim for intentional infliction of

emotional distress, and her husband brought a related claim for loss of consortium.

The district judge granted summary judgment to APAC and Rapallo on all counts.

      Durley was employed by APAC at their Plant Services Division from 1983

until she was placed on long-term disability in 1995. Plant Services employed

between 15 and 20 people throughout the duration of Durley’s employment there.

Initially hired as a secretary, Durley was promoted to Assistant Purchasing Agent

in 1984. In that position, she shared an office with, and was supervised by,

Douglas Bair. Durley performed accounting functions and also assisted Bair with


      1
       Durley also sued her former supervisor, Douglas Bair, but later dismissed those claims.

                                              2
purchasing. After her promotion, Bair made comments to Durley that women

should not perform certain kinds of work, particularly in the military. He smoked

in the office and let the ashes from his cigarettes drop on Durley’s clothes and

desk, despite his awareness that cigarette smoke aggravated Durley’s migraines.

Bair also repeated graphic stories from the news involving sexual assaults against

women and abuse of children. Durley complained to Rapallo about Bair’s

behavior. Bair was required to smoke elsewhere and the building was designated a

smoke-free environment.

      In June 1993, while Rapallo was away, a confrontation occurred in which

Bair yelled at Durley and approached her in a threatening manner. Durley went

home for the day and did not return until a few days later when Rapallo was back

in the office. As a result of the confrontation, Durley’s office was moved and she

was told to report to Rapallo instead of Bair. Her title was changed to Accountant.

      In 1994, Bair retired. Durley applied for his position of Purchasing Agent.

Over time, she had performed many of the job functions and acted as Purchasing

Agent during Bair’s absences from work. There was no written job description for

the position. At around the same time, APAC headquarters decided to close the

fabrication workshop at the Plant Services facility. Jeff Warnock worked in the

fabrication workshop. Rapallo decided to consolidate the two positions and hired


                                          3
Warnock to be the new Purchasing Agent. Warnock had no office or purchasing

experience and did not have a high school diploma. Durley timely filed an EEOC

complaint alleging failure to promote on the basis of gender.

          At the EEOC’s request, APAC, through Rapallo, created a job description

for the Purchasing Agent position. The description emphasized the warehouse and

fabrication skills possessed by Warnock, rather than the administrative duties that

were the main functions of the job as performed by Bair prior to his retirement.

          Durley was diagnosed with Chronic Fatigue Syndrome (“CFS”) in the early

1990s, which required her to take time off from work for doctor’s appointments

and sometimes caused her to be late to work. Stress aggravates the symptoms of

CFS, which may include migraines, high blood pressure and fever. After Durley

filed her EEOC charge, she felt harassed by Rapallo because of her need to be

absent due to her condition. Her pay was never docked and time off was never

refused, but Durley felt her symptoms were aggravated by workplace induced

stress.

          On 7 June 1995, when APAC employees received raises, Durley only

received a cost of living increase. All other employees except Warnock received

higher raises. She amended her EEOC charge to include claims of disability




                                           4
discrimination and retaliation. Durley went on long-term disability on 8 June

1995.




                                    II. DISCUSSION

        We review the district judge’s grant of summary judgment de novo.

Chapman v. AI Transport, ___ F.3d 105, 117 (11th Cir. 2000) (en banc). Summary

judgment is only appropriate when, viewing the evidence in the light most

favorable to the non-moving party, no genuine issue of material fact exists. Id.

See also Fed.R.Civ.Pro. 56(c). We address each of Durley’s claims in turn.

A. Title VII Sex Discrimination

        Durley asserts that APAC failed to promote her to the position of Purchasing

Agent because of her gender.2 A Title VII plaintiff may prove her case by direct or

circumstantial evidence. Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th

Cir. 1997). Because Durley relies on circumstantial evidence to allege

discrimination, we apply the analytical framework established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.

Ed. 2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

        2
        Durley also claimed a Title VII violation for hostile work environment. This claim was
without merit, and summary judgment is affirmed without further discussion.

                                              5
248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Accordingly, Durley bears the

initial burden of establishing a prima facie case of discrimination. McDonnell

Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. In other words, she must

demonstrate that: (1) she is a member of the protected class; (2) she applied and

was qualified for the position; (3) that she was not hired; and (4) the position was

awarded to an equally or less qualified employee who was not a member of the

protected class. Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir.

2000). Once a prima facie case is established, a presumption of unlawful

discrimination is established. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S.

at 254, 101 S.Ct. at 1094). The burden then shifts to APAC to provide a

legitimate, non-discriminatory reason for its hiring decision. Id. See also

Chapman, ___ F.3d at 118. If such a reason is articulated, the plaintiff then “has

the opportunity to discredit the defendant’s proffered reasons for its decision.”

Combs, 106 F.3d at 1528. In other words, Durley must provide sufficient evidence

to raise a question of fact as to whether APAC’s proffered reason is pretextual.

      Durley has established a prima facie case of employment discrimination, and

APAC concedes that point. She is female, she applied for the position of

Purchasing Agent, and Rapallo and Bair testified that she was qualified for the

position of Purchasing Agent. The position was awarded to Warnock, who was the


                                          6
warehouse foreman prior to his promotion to Purchasing Agent. APAC asserts,

however, that Durley has failed to establish sufficient evidence of pretext to rebut

APAC’s proffered non-discriminatory reason for hiring Warnock instead of

Durley. APAC asserts that, at the time that Bair retired and a replacement was

needed to fill his position, the warehouse was being closed, so Rapallo decided to

consolidate the functions of Purchasing Agent and warehouse foreman into one

position and awarded it to Warnock because he was more qualified than Durley to

fill the new position.

      In his Recommendation and Report, the magistrate judge found that Durley

had provided sufficient evidence of pretext to send the Title VII discrimination

claim to a jury. Relying on Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994), the

magistrate judge found that APAC’s post-hoc formulation of a job description that

emphasized Warnock’s warehouse and fabrication skills, combined with

Warnock’s lack of administrative or purchasing experience, presented sufficient

evidence of pretext to raise a material question of fact. The district judge disagreed

and granted summary judgment for APAC, reasoning that Durley had failed to

provide evidence that the job description was an inaccurate reflection of

Warnock’s actual duties as Purchasing Agent.




                                          7
      We agree with the magistrate judge that the Title VII claim should have been

presented to the jury. Durley presented evidence that she was qualified for the

position and that Bair considered her to be familiar with 85% of the duties of the

Purchasing Agent. Deposition testimony also demonstrated that Warnock had no

formal administrative or purchasing experience. Indeed, Durley testified in her

deposition that she assisted in training Warnock after Bair retired. A reasonable

jury could conclude that Durley was more qualified to handle the administrative

and purchasing duties performed by the Purchasing Agent.

      APAC alleges, however, that the newly consolidated position required

different skills which made Warnock the more qualified candidate. APAC

presented a job description to the EEOC which was created after the discrimination

claim was filed, because APAC claimed that no job descriptions existed for

positions in Plant Services. Bair stated, however, that he prepared a list for

Rapallo of what the duties of the Purchasing Agent would be if the jobs were

consolidated, and that only 1 percent of the duties would involve fabrication and

simple welding. Bair also understood that the Purchasing Agent was to handle

warehouse duties because the shipping/receiving clerk position was to be

eliminated along with the warehouse foreman position. Durley presented evidence

that a shipping/receiving clerk was hired after Warnock became the Purchasing


                                          8
Agent. The district court erred in finding that no evidence was presented to

contradict APAC’s provided job description.

      In Batey, the plaintiff’s supervisor decided to consolidate two positions and

created a qualifications matrix for the new job that emphasized the skills of one

position over another position, with the result that Batey was not awarded the

promotion. Id. at 1334-35. We found that summary judgment for the defendant

was improperly granted in Batey, because the evidence demonstrated that Batey

had more relevant qualifications and all three men who had previously occupied

her position had received the promotion. Id. While the evidence in Durley’s case

is not as strong, it is sufficient to create a question of fact for the jury, because

discriminatory intent could be inferred from APAC’s decision to emphasize

Warnock’s warehouse skills over the purchasing and administrative skills

possessed by Durley in awarding him the position. APAC’s argument that no job

description existed is contradicted by Bair’s testimony that he created a list of

skills at Rapallo’s request. The further evidence that a warehouse shipper/receiver

was hired after Warnock assumed the position of purchasing agent creates further

doubt about whether the job description created by APAC is accurate, or designed

to make Warnock appear as qualified as Durley. We find that Durley presented

sufficient evidence to raise a question of fact as to whether APAC’s proffered non-


                                            9
discriminatory reason for hiring Warnock was pretextual, and, accordingly, we

REVERSE the district judge’s grant of summary judgment to APAC on the failure

to promote claim.



B. Disability Discrimination

       Durley also asserted a claim for disability discrimination based on APAC’s

failure to promote her to purchasing agent. The burden of proof for an ADA claim

is also based on the framework set forth in McDonnell Douglas Corp. See 411

U.S. at 802, 93 S. Ct. at 1824. In order to establish a prima facie ADA violation,

Durley must demonstrate that she is a qualified individual with a disability and was

discriminated against because of that disability. Witter v. Delta Air Lines, Inc.,

138 F.3d 1366, 1369 (11th Cir. 1998). In order to meet the definition of disabled,

Durley must show that she was substantially limited in a major life activity as a

result of a physical or mental impairment. 42 U.S.C. § 12102(2). Durley argues

that she is limited in the major life activity of working as a result of her CFS. Her

own testimony, however, defeats her claim.3 Durley testified that, even when her

condition was allegedly being aggravated by work-related stress, she “was able to


       3
       The parties do not contest that Durley is now fully disabled in the life activity of
working. The relevant time period at issue is the period during which Bair retired and Warnock
was promoted, during which period Durley continued to work.

                                              10
perform the job . . . The work got done always.” Durley Depo. at 208-09. The

district judge properly found that Durley was not disabled within the meaning of

the statute at the time of the alleged failure to promote, and summary judgment on

the ADA claim was appropriate.

C. Retaliation and Constructive Discharge

      Durley claims that she was constructively discharged in retaliation for her

filing of an EEOC charge against APAC. 42 U.S.C. § 2000e-3(a) prohibits such

retaliation. In order to establish a prima facie case of retaliation, “a plaintiff must

show that (1) she [filed an EEOC charge]; (2) she suffered an adverse employment

action; and (3) the adverse action was causally related to the protected expression.”

Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998). Durley

meets the first element, as she did file an EEOC charge.

      The adverse employment action of which Durley complains is constructive

discharge. She argues that Rapallo harassed her regarding medically necessary

absences and tardiness and that his harassment increased after she filed her EEOC

charge. She also points to her treatment by fellow employees, and the comparative

size of her raise as further evidence that she was constructively discharged. In

order to successfully state a claim, however, Durley was required to “demonstrate

that working conditions were ‘so intolerable that a reasonable person in her


                                           11
position would have been compelled to resign.’” Poole v. Country Club of

Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997). That standard has not been

met, and accordingly, summary judgment was appropriate.

      Even if the actions of which Durley complains were sufficient to create

intolerable working conditions, the problem of causation remains. Durley did not

establish that other employees besides Rapallo had knowledge of her EEOC

charge. Furthermore, the increase in harassment by Rapallo, which consisted of

him questioning Durley about the reasons for her absences, increased at the same

time as a corresponding increase in absences. Causation has also not been

established. Accordingly, summary judgment on the retaliation and constructive

discharge claim was appropriate.

D. State Law Claims

      Durley also sought damages for intentional infliction of emotional distress,

and her husband sought damages for loss of consortium. The district court

properly granted summary judgment on the intentional infliction of emotional

distress claim. Durley failed to establish that the conduct of Rapallo or APAC was

extreme and outrageous. See Mears v. Gulfstream Aerospace Corp., 225 Ga. App.

636, 484 S.E.2d 659, 663 (Ga. App. 1997) (defining elements of the tort of

intentional infliction of emotional distress). The burden on a plaintiff asserting a


                                          12
claim for intentional infliction of emotional distress is heavy. Id. at 664. Rudeness

and insensitivity that result in hurt feelings will not, in and of themselves, establish

liability. See id. Considering the totality of the circumstances, Durley has not

established that such extreme and outrageous behavior occurred.

      James Durley’s loss of consortium claim must also fail. Loss of consortium

is a derivative tort, and no liability can attach where the defendant owes no tort

liability to the spouse. See Hightower v. Landrum, 109 Ga. App. 510, 514, 136

S.E.2d 425, 428 (Ga. App. 1964). The Title VII failure to promote claim does not

provide a basis for derivative liability for loss of consortium. Summary judgment

was properly granted on the loss of consortium claim.

                                III. CONCLUSION

      The district judge granted summary judgment for Rapallo and APAC on all

grounds. We REVERSE the grant of summary judgment on the Title VII failure to

promote claim and AFFIRM the grant of summary judgment on all other claims,

and REMAND for further proceedings consistent with this opinion.




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