Dawson v. Allstate Insurance Co.
Annotate this CaseJanuary 1993 Term
___________
21492
___________
KAREN E. DAWSON,
Plaintiff Below, Appellant
v.
ALLSTATE INSURANCE COMPANY, A FOREIGN
CORPORATION, AND RALPH BURTON,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Civil Action No. 89-C-683
AFFIRMED, IN PART;
REVERSED, IN PART, AND REMANDED.
______________________________________
Submitted: May 11, 1993
Filed: July 16, 1993
Barbara H. Lupton
Masters & Taylor, L.C.
Charleston, West Virginia
Attorney for the Appellant
Ricklin Brown
Elizabeth D. Harter
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for the Appellees
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "To successfully defend against a motion for summary
judgment, the plaintiff must make some showing of fact which would
support a prima facie case for his claim." Syl. pt. 2, Conaway v.
Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423
(1986).
2. "In order to make a prima facie case of employment
discrimination under the West Virginia Human Rights Act, W. Va.
Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the
following: (1) That the plaintiff is a member of a protected
class. (2) That the employer made an adverse decision concerning
the plaintiff. (3) But for the plaintiff's protected status, the
adverse decision would not have been made." Syl. pt. 3, Conaway v.
Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423
(1986).
3. "Under the provisions of Rule 56 of the West Virginia
Rules of Civil Procedure, when the moving party presents
depositions, interrogatories, affidavits or otherwise indicates
there is no genuine issue as to any material fact, the resisting
party to avoid summary judgment must present some evidence that the
facts are in dispute." Syl. pt. 2, Guthrie v. Northwestern Mutual
Life Ins. Co., 158 W. Va. 1, 208 S.E.2d 60 (1974).
4. "The question to be decided on a motion for summary
judgment is whether there is a genuine issue of fact and not how
that issue should be determined." Syl. pt. 5, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
5. "A party who moves for summary judgment has the
burden of showing that there is no genuine issue of fact and any
doubt as to the existence of such issue is resolved against the
movant for such judgment." Syl. pt. 6, Aetna Casualty & Sur. Co.
v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770
(1963).
6. "Even if the trial judge is of the opinion to direct
a verdict, he should nevertheless ordinarily hear evidence and,
upon a trial, direct a verdict rather than try the case in advance
on a motion for summary judgment." Syl. pt. 1, Masinter v. WEBCO
Co., 164 W. Va. 241, 262 S.E.2d 433 (1980).
Per Curiam:
This case is before the Court upon the appeal of Karen E.
Dawson, the plaintiff below, from the June 9, 1992 order of the
Circuit Court of Kanawha County which granted summary judgment for
the appellees and defendants below, Allstate Insurance Company and
Ralph Burton. Ms. Dawson brought this action against the appellees
alleging that the appellees had refused to hire her as an insurance
agent solely on the basis of her gender in violation of W. Va.
Code, 5-11-9 [1989].See footnote 1 Ms. Dawson also alleged that the appellee,
Ralph Burton, made false representations to her about getting the
job upon which she detrimentally relied. For reasons set forth
below, we hold that the granting of summary judgment was proper in
Ms. Dawson's false misrepresentation action, and improper in Ms.
Dawson's gender discrimination action. Therefore, we affirm, in
part, and reverse, in part, and remand this case to the circuit
court for proceedings consistent with this opinion.
I
The appellee, Ralph Burton, supervises agents and has the
responsibility of hiring agents in West Virginia for Allstate
Insurance Company (hereinafter Allstate). Mr. Burton was actively
recruiting two Allstate agents in the summer of 1988. In June of
1988 Ms. Dawson, the appellant, applied for one of the positions.
There were at least two other people who applied for the positions:
Patrick Reynolds and James Matthews. Eventually, Mr. Reynolds was
hired for one of the agent positions. Mr. Matthews decided not to
pursue the job, and Ms. Dawson was not offered a position.
Mr. Burton stated that although there is not a list of
absolute standards which indicate that a person is qualified to be
a sales agent, there were qualities that he looked for when
determining whether a person would be successful as an agent. For
instance, he stated that Allstate preferred that the applicant has
a college degree and that the applicant has some prior success
pattern, preferably in sales. The applicant has to pass the TRACK
test, a general aptitude test. The applicant should also like to
win awards and have high monetary goals. Mr. Burton states that
competitiveness is important, and one way he checks to see if the
applicant is competitive is to find out whether the applicant
played sports in college or competes in races. The applicant also
has to work well with people and have a professional image.
During his deposition, Mr. Burton outlined the general
procedure he used when considering an applicant for a position with
Allstate. First, the applicant takes the TRACK test. Second, Mr.
Burton interviews the applicant. Third, the applicant completes
work samples which gives the applicant an idea of what the job
entails by having the applicant contact people about their auto and
homeowner's insurance. Fourth, the applicant observes the job.
Fifth, the applicant is interviewed by the Territorial Sales
Manager, John Rushe, or the Territorial Sales Development Manager,
Charlie Landen. Sixth, the applicant must obtain an insurance
license.
Ms. Dawson completed the entire procedure outlined by Mr.
Burton with the exception of obtaining an insurance license. Ms.
Dawson passed the TRACK test and interviewed with Mr. Burton. Ms.
Dawson stated that during the interview Mr. Burton asked her why
she was not pursuing a teaching degree. Mr. Burton admits that he
questioned Ms. Dawson about a teaching career. Mr. Burton also
told Ms. Dawson that he would need to meet with her children in
order to make sure that they understood the demands of an agent's
job. The appellees point out that the Allstate manual suggests
that the family be involved in the interview process in order to
make sure they understand the commitment of an agent.
Ms. Dawson also stated that she gave Mr. Burton her
schedule for the summer since she would be out of town throughout
the summer taking classes in order to complete her master's degree.
Mr. Burton does not recall Ms. Dawson giving him the schedule. Ms.
Dawson alleges that even though Mr. Burton had her schedule, he
nevertheless sent her work samples to be completed in two days when
he knew that she would not receive the forms until a week after
they were due since she was out of town.
Ms. Dawson completed the first set of work samples which
involved calling people and asking about their insurance. The
purpose of the work samples is to give the candidate a feel for
calling strangers to solicit insurance business.
Ms. Dawson then interviewed with Mr. Rushe. Ms. Dawson
stated that Mr. Rushe told her that as far as he was concerned she
had the job, but it was Mr. Burton's decision. In his affidavit,
Mr. Rushe stated that he did not tell Ms. Dawson that the job was
hers. Mr. Rushe did ask Ms. Dawson to complete 30 additional work
samples since she had called 30 acquaintances when doing the first
set of work samples which would not give Ms. Dawson an indication
of what it is like to call strangers. Mr. Rushe also stated in his
affidavit that he asked Mr. Burton to have her complete an Annual
New Business Income/Sales Projection form since he had concerns
about whether Ms. Dawson comprehended the amount of work she would
need to complete in order to reach her monetary goal.
Ms. Dawson was given the Annual New Business Income/Sales
Projection form to complete. Mr. Burton stated that he explained
how the form was to be completed. Ms. Dawson stated that Mr.
Burton did not explain how to do the form, so she asked her ex-husband, who was an insurance agent, how to complete the form. Mr.
Burton stated that after she completed the form, he had her explain
it to him and she could not. Mr. Burton stated that Mr. Reynolds
was not asked to complete the Annual New Business Income/Sales
Projection form nor was he asked to do thirty additional work
samples. Mr. Reynolds stated in his affidavit that he was required
to complete the Annual New Business Income/Sales Projection form.
Ms. Dawson did observe agents at the Allstate booth
located in the Town Center mall. Mr. Burton stated that the agents
who were working in the booth on the day Ms. Dawson observed did
not make any comments regarding Ms. Dawson when usually they will
say that they think a candidate would be a good agent. Mr. Burton
also stated that one agent at the booth stated that it was her
understanding that Ms. Dawson was not motivated to work.
Ms. Dawson stated that she told Mr. Burton that she would
get her insurance license after she was hired. Mr. Burton stated
that obtaining a license is a prerequisite to getting the job.
However, Ms. Dawson stated that Mr. Reynolds was hired before he
obtained his license, though Mr. Burton denies that Mr. Reynolds
was offered a job before he had obtained his insurance license.
Ms. Dawson stated that Mr. Burton told her that he could
not offer her a job because there were three other people, who were
men, who were more qualified than she was. Ms. Dawson also stated
that Mr. Burton said that he could not offer her a position because
she did not have a track record. Mr. Burton gave the following
reasons for not hiring Ms. Dawson: concern about whether Ms.
Dawson understood what it took to perform the job; the lack of
comments by agents at the booth about Ms. Dawson after Ms. Dawson's
observation; the less than satisfying job references of Ms. Dawson
(though Mr. Burton never actually spoke with any of Ms. Dawson's
references); Ms. Dawson's failure to obtain her agent's license;
the concern about her lack of initiative in pursuing a full-time
teaching position or working as a solicitorSee footnote 2 in her ex-husband's
insurance agency; the wearing of a dress by Ms. Dawson which did
not appear appropriate for the job (looked like a dress you would
wear to a dinner party according to Mr. Burton); the fact that Ms.
Dawson got upset when the interview dates were mixed up and when he
was going over the Annual New Business Income/Sales Projection
form; and what appeared to be lack of good judgment by Ms. Dawson.
Mr. Burton stated that he told Ms. Dawson that Allstate did not
have a position for her only after she demanded to know whether or
not she had the job.
Ms. Dawson filed a complaint alleging that the appellees
had not hired her solely on the basis of her gender, and that Mr.
Burton had made false representations to her about getting the job
upon which she detrimentally relied. The appellees filed a motion
for summary judgment on July 30, 1990. Ms. Dawson did not respond
to the motion for summary judgment. On June 9, 1992, the circuit
court granted the appellees' motion for summary judgment. The
circuit court had before it the pleadings, the depositions of Mr.
Burton and Ms. Dawson, the affidavits of Mr. Rushe and Mr.
Reynolds, and the appellees' answer to the appellant's
interrogatories and request for the production of documents. It is
from the circuit court's granting of the motion for summary
judgment that Ms. Dawson appeals.
II
We first address Ms. Dawson's contention that she
established a prima facie case of gender discrimination under W.
Va. Code, 5-11-9 [1989] precluding summary judgment. We agree with
Ms. Dawson.
W. Va. Code, 5-11-9(a)(1) [1989] states, in part, that
"[i]t shall be an unlawful discriminatory practice, unless based
upon a bona fide occupational qualification, . . . [f]or any
employer to discriminate against an individual with respect to
compensation, hire, tenure, terms, conditions or privileges of
employment if the individual is able and competent to perform the
services required[.]" "The term 'discriminate' or 'discrimination'
means to exclude from, or fail or refuse to extend to, a person
equal opportunities because of race, religion, color, national
origin, ancestry, sex, age, blindness, handicap, or familial status
and includes to separate or segregate[.]" W. Va. Code, 5-11-3(h)
[1989] (emphasis added).See footnote 3 These two code sections in the West
Virginia Human Rights Act are the basis of Ms. Dawson's gender
discrimination claim.
In syllabus point 2 of Conaway v. Eastern Associated Coal
Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986) we stated that in
order "[t]o successfully defend against a motion for summary
judgment, the plaintiff must make some showing of fact which would
support a prima facie case for his claim." Furthermore, in
syllabus point 3 of Conaway, supra, we outlined what the plaintiff
must show in order to make a prima facie case in an employment
discrimination action:
In order to make a prima facie case
of employment discrimination under the West
Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer
proof of the following:
(1) That the plaintiff is a member of a
protected class.
(2) That the employer made an adverse
decision concerning the plaintiff.
(3) But for the plaintiff's protected
status, the adverse decision would not have
been made.
In the case before us, Ms. Dawson has satisfied the first
two requirements of proving a prima facie case: she is a woman,
and she was not hired by Allstate. It is the third requirement
that is in dispute.
This Court noted in Conaway that it is unlikely that a
plaintiff will have direct proof of the third requirement.
Therefore, direct proof is not necessary.
The first two parts of the test are easy,
but the third will cause controversy. Because
discrimination is essentially an element of
the mind, there will probably be very little
direct proof available. Direct proof,
however, is not required. What is required of
the plaintiff is to show some evidence which
would sufficiently link the employer's
decision and the plaintiff's status as a
member of a protected class so as to give rise
to an inference that the employment decision
was based on an illegal discriminatory
criterion. This evidence could, for example,
come in the form of an admission by the
employer, a case of unequal or disparate
treatment between members of the protected
class and others by the elimination of the
apparent legitimate reasons for the decision,
or statistics in a large operation which show
that members of the protected class received
substantially worse treatment than others.
Id. at 170-71, 358 S.E.2d at 429-30. Therefore, all Ms. Dawson has
to show in order to meet the third requirement is an inference that
the decision to not hire her was based on gender.
Ms. Dawson points to several pieces of evidence in order
to give rise to an inference that Allstate's decision to not hire
her was based on gender. In her deposition Ms. Dawson stated that
Mr. Burton asked her on at least three occasions why she did not
pursue a teaching job. Historically, teaching has been considered
a good career for women with children. Ms. Dawson contends that
Mr. Burton was implying that teaching was more suited for women.
Ms. Dawson had a teaching degree, and she had substituted over a
period of approximately ten years. Mr. Burton admits that he asked
her about a teaching career and about becoming a solicitor. He
states that the fact that she did not attempt to obtain a teaching
job or apply for a solicitor's job showed a lack of initiative
since Ms. Dawson stressed that she needed a job.See footnote 4
Mr. Burton also informed the appellant that he would have
to meet with her children in order to make sure they understood the
long hours of an agent. The appellees point out that the Allstate
manual requires potential agents' families to be involved in the
interview because of the long work hours.
Mr. Burton stated that he thought an applicant's
participation in sports was a big plus since it demonstrates
aggressiveness. Mr. Burton also states that he gives heavy weight
to successful prior work experience. Ms. Dawson argues that these
two criteria put women at a disadvantage.
The defendants' answer to the plaintiff's interrogatories
indicate that out of forty-nine agents in West Virginia, four were
women in 1988, and out of fifty-one agents in West Virginia, five
were women in 1989. We noted in Conaway, supra, that since it is
unlikely that a plaintiff will have direct proof of discrimination,
the plaintiff can use statistical evidence which indicates that
members of the protected class were treated worse than others as
evidence of discrimination. Therefore, we find the statistical
gender disparity which exists to be relevant to whether Ms. Dawson
has established a prima facie case of gender discrimination.
Ms. Dawson states that she was told that she did not have
a proven successful employment history, and that the other
applicants, who were men, were more qualified than she. Ms. Dawson
points out that Mr. Burton never spoke with any of her references,
who had been past employers. Ms. Dawson also points out that she
had several part-time jobs while her children were small. However,
Mr. Reynolds, who was eventually hired as an agent, had just
graduated from college and had only worked as a solicitor in his
father's insurance business.
The appellees point out that once a prima facie case is
established, then the employer, if it can, offers a legitimate
nondiscriminatory reason for the employment decision. The
plaintiff must then show that the offered nondiscriminatory reason
was merely pretextual.See footnote 5 See syl. pt. 4, Conaway, supra. The
appellees state that they have given a legitimate nondiscriminatory
reason for their failure to hire Ms. Dawson, so she must show that
the legitimate nondiscriminatory reason they offered was pretextual
in order to survive a motion for summary judgment. We disagree.
In syl. pt. 2 of Conaway, supra, we made it clear that all a
plaintiff must do to survive a motion for summary judgment is to
establish a prima facie case. To hold otherwise would put an
unfair burden on the plaintiff since there is often little direct
evidence of discrimination. The decision of whether there is
discrimination rests with the jury's determination of the motive or
intent behind the actions of the parties.
Therefore, Ms. Dawson established a prima facie case
since the above facts give rise to an inference that gender played
a role in Allstate not hiring Ms. Dawson for the position.
Furthermore, summary judgment is not proper in complex cases which
involve motive or intent. 6 James W. Moore & Jeremy C. Wicker,
Moore's Federal Practice ¶ 56.16 (1993). See also Karnell v.
Nutting, 166 W. Va. 269, 273 S.E.2d 93 (1980). While it is not
clear that the above facts will enable Ms. Dawson to prevail at
trial, the facts do enable Ms. Dawson to survive a motion for
summary judgment.
III
Next, we address whether summary judgment was appropriate
in Ms. Dawson's fraudulent misrepresentation claim. Although Ms.
Dawson mentions in her petition for appeal, which is also her
brief, that count two of her complaint was a fraudulent
misrepresentation claim, Ms. Dawson does not discuss nor argue in
her petition for appeal what evidence is in the record to support
her fraudulent misrepresentation claim.
In syllabus point 3 of Higginbotham v. City of
Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974) overruled on other
grounds, O'Neil v. City of Parkersburg, 160 W. Va. 694, 237 S.E.2d 504 (1977), we held that assignments of error which are not argued
in the briefs will be deemed waived. Therefore, the circuit court
correctly granted summary judgment on Ms. Dawson's fraudulent
misrepresentation claim.
IV
Last, we address the appellees' contention that the
circuit court properly granted the appellees' motion for summary
judgment because Ms. Dawson failed to respond to the motion for
summary judgment. The appellees point out that Ms. Dawson had two
years from the time they filed the motion for summary judgment
until the circuit court granted the motion to respond; however, Ms.
Dawson failed to respond to the motion for summary judgment.
The appellees point to W. Va. R. Civ. P. 56(e), which
states, in part:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of his pleading, but his response,
by affidavits or as otherwise provided in this
rule, must set forth specific facts showing
that there is a genuine issue for trial. If
he does not so respond, summary judgment, if
appropriate, shall be entered against him.
The appellees also point to syllabus point 2 in Guthrie v.
Northwestern Mutual Life Ins. Co., 158 W. Va. 1, 208 S.E.2d 60
(1974) which states:
Under the provisions of Rule 56 of the
West Virginia Rules of Civil Procedure, when
the moving party presents depositions,
interrogatories, affidavits or otherwise
indicates there is no genuine issue as to any
material fact, the resisting party to avoid
summary judgment must present some evidence
that the facts are in dispute.
The appellees contend that since Ms. Dawson did not respond to the
motion for summary judgment, then the circuit court correctly
granted the appellees' motion for summary judgment. We disagree.
Although syllabus point 2 in Guthrie does state that the
nonmoving party must present evidence that the facts are in
dispute, syllabus point 2 also states that the moving party's
evidence must show that there is no genuine issue of material fact.
See also Crain v. Lightner, 178 W. Va. 765, 364 S.E.2d 778 (1987).
In syllabus point 5 of Aetna Casualty & Sur. Co. v. Federal Ins.
Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963) we made it
clear that "[t]he question to be decided on a motion for summary
judgment is whether there is a genuine issue of fact and not how
that issue should be determined." Furthermore, in syllabus point
6 of Aetna Casualty & Sur. Co., supra, we pointed out that "[a]
party who moves for summary judgment has the burden of showing that
there is no genuine issue of fact and any doubt as to the existence
of such issue is resolved against the movant for such judgment."
Therefore, in the case before us the appellees have the
burden of proving that there is no genuine issue of fact. If the
appellees fail to prove that there is no genuine issue of material
fact, then there is no need for Ms. Dawson to respond.
The Fourth District Court of Appeal of Florida pointed
out that it is not necessary for the non-moving party to respond if
the moving party fails to show that there is no genuine issue of
fact:
Much of the argument in the briefs deal
with the contention that the party moved
against must file a counter-affidavit or
suffer summary judgment. This, of course, is
not correct. If the court file contains other
competent proof such as depositions,
admissions, or answers to interrogatories,
which contradicts the moving party's claim, it
is not necessary for the non-moving party also
to file an affidavit to counter the movant's
affidavit. That is not to say that good
practice may not often suggest also filing an
affidavit so as to point up the contradicting
statements which may be buried throughout a
voluminous court file.
Miscal Construction Co., Inc. v. Rusco Industries, Inc., 403 So. 2d 607, 608 (Fla. Dist. Ct. App. 1981). See 6 James W. Moore & Jeremy
C. Wicker, Moore's Federal Practice ¶ 56.22[2] (1993).
In the case before us, the circuit court had before it
the pleadings, two depositions, answers to interrogatories, and two
affidavits. The evidence before the circuit court did show that
there is an issue of fact. Allstate had hired more men than women
to be agents in West Virginia. Mr. Burton admits that he asked Ms.
Dawson why she did not pursue a teaching career. Whether Mr.
Burton's question about teaching shows gender discrimination is a
question for the jury since it involves motive.
It has been pointed out that "although there may be no
dispute as to the basic evidentiary facts, summary judgment is
improper where the case stands or falls on the inference that may
be drawn from these facts--particularly, where the inferences
depend upon subjective feelings and intent." Dalesio v. Allen-Bradley Co., 64 F.R.D. 554, 556 (W.D. Pa. 1974) (citing cases).
Furthermore, we have stated that "[e]ven if the trial judge is of
the opinion to direct a verdict, he should nevertheless ordinarily
hear evidence and, upon a trial, direct a verdict rather than try
the case in advance on a motion for summary judgment." Syl. pt. 1,
Masinter v. WEBCO Co., 164 W. Va. 241, 262 S.E.2d 433 (1980).
Therefore, since the case before us involves motive and
intent and since the appellees have failed to show that there is no
genuine issue of fact, summary judgment should not have been
granted on the issue of gender discrimination even though Ms.
Dawson failed to respond to the motion for summary judgment.
V
Accordingly, we hold that the granting of summary
judgment was proper in Ms. Dawson's false misrepresentation action,
and improper in Ms. Dawson's gender discrimination action.
Therefore, we affirm, in part, and reverse, in part, and remand
this case to the circuit court for proceedings consistent with this
opinion.
Affirmed, in part,
reversed, in part,
and remanded.
Footnote: 1 W. Va. Code, 5-11-9 was amended in 1992; however, the
amendments do not affect the issue in this case.
Footnote: 2 The following is a general description of the difference
between an agent and a solicitor:
A 'general' agent is ordinarily one who is authorized to accept risks, to agree upon and settle terms of insurance contracts, to issue policies of insurance, to renew policies, and to change, modify, or vary the
terms of existing contracts, as distinguished
from a 'soliciting' agent, who merely procures
applications, forwards them to other officers
of the insurer, collects premiums, and
delivers policies.
16 John A. Appleman & Jean Appleman, Insurance Law and Practice §
8696, at 274 (1981) (footnote omitted).
Footnote: 3 W. Va. Code, 5-11-3 was amended in 1992; however, the
amendments do not affect our discussion.
Footnote: 4 Following is a portion of Mr. Burton's testimony:
Q. Can you name one thing for me right now that would indicate to you that she [Ms. Dawson] lacked initiative, based on your interviews, based upon any of your interview process, testing or whatever, other than what
this Teresa girl said that would demonstrate
to you that she lacked initiative?
A. [Mr. Burton:] There was a question
that I had regarding why she did not work or
had not pursued, which I had talked to her
about in the last two meetings I had with her,
why she had not pursued a solicitor's job with
either Jim or another agent where she could
probably well have worked part-time and worked
around the children, too, at that time.
In other words, the job could have been
fit in most offices where she could have
worked around her children's hours. That I
was wondering about.
Q. That showed you a lack of initiative
that she didn't want to work as a solicitor?
A. [Mr. Burton:] Yes, I was wondering
why she did not pursue a solicitor's job if
she wanted to get in sales.
Q. Wasn't she working part-time as a
teacher, substitute teacher?
A. [Mr. Burton:] Yes, but still, you
could even work -- when you're not teaching,
you could work as a solicitor on your days
when you're not teaching. It's pretty
flexible to be a solicitor, you know, if
you've got an agent that would be agreeable
with it.
Q. So besides the fact that she wasn't a
part-time solicitor along with being a part-time school-teacher, was there anything else
besides Teresa's comment that led you to
believe that she lacked initiative?
A. [Mr. Burton:] Well, the fact that
she did not get an agent's license, did not
pursue that, and the fact that she did not
pursue getting a full-time teaching position.
Footnote: 5 Although not at issue in the case before us, we point
out that the Supreme Court of the United States recently held that
even if the plaintiff shows that the employer's nondiscriminatory
reasons for its actions are pretextual the plaintiff is not
entitled to judgment as a matter of law since the ultimate burden
of persuasion remains with the plaintiff. St. Mary's Honor Center
v. Hicks, No. 92-602, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d
___ (June 25, 1993).
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