                         Cathy D. DURLEY, James Durley, Plaintiffs-Appellants,

                                                       v.
                         APAC, INC., Theodore J. Rapallo, Defendants-Appellees,

                                         Douglas C. Bair, Defendant.

                                                No. 99-10917.
                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                Dec. 26, 2000.

Appeal from the United States District Court for the Northern District of Georgia. (No. 97-00908-1-CV-
ODE), Orinda D. Evans, Chief Judge.
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 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



    1
     Durley also sued her former supervisor, Douglas Bair, but later dismissed those claims.
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 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 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, 229

F.3d 1012 (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. 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, 229 F.3d at 1024. 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

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



     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.
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.

         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 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-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 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


     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.
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 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 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.
