Opinion
CIV. NO. 3:99-CV-0156-P.
April 11, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are:
(1) Defendants' Motion for Summary Judgment, Brief in Support, and Appendix filed February 11, 2000;
(2) Plaintiff's Amended Response to Defendants' Motion for Summary Judgment, Brief in Support and Appendix filed March 10, 2000;
(3) Defendants' Reply filed March 27, 2000;
(4) Defendants' Amended Motion for Extension of Time to File Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment filed March 23, 2000; and
(5) Defendants' Objections to and Motion to Strike Portions of Plaintiff's Summary Judgment Evidence filed March 28, 2000.
Considering all of the evidence, the Court rules in Defendants' favor. Therefore, the Court overrules Defendants' Objections to Plaintiff's Summary Judgment Evidence and DENIES Defendants' Motion to Strike as MOOT.
After reviewing the motion, briefs, attached evidence, and applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment in its entirety.
FACTS
Most of the facts in this case are undisputed. In 1980, Plaintiff Cindy Brown ("Plaintiff" or "Brown") began working for Dr. Pepper/Seven Up, Inc. ("DPSU"). During her seventeen years of employment, she enjoyed increasing amounts of responsibility and received several promotions. Pl's App. at 52-57. In June 1988, Brown became Manager of Finance and Risk Administration; in 1992, she received a promotion within the Finance Department to the position of Director of Corporate Planning. Pl's App. at 58-60; Def's App. at 49-58, 273, 531. With these promotions, Brown also received several salary increases and took graduate studies at DPSU's expense, obtaining her MBA in economics and finance as well as her CPA license. Def's App. at 26-28, 49, 531-56.
Brown's pay records reflect the following base pay rates: September 1993 — $78,000; August 1994 — $81,120; June 1995 — undeterminable increase; July 1995 — $100,000; February 1996 — $115,000. During this time, pay rates received a classification between 0 and 22, with 0 being the highest. Brown's pay records reflect that during these same years, she increased from level 15 to level 10. After the reorganization, DPSU adopted a new set of categories that ranged from A to F, with F being the highest, plus an executive band (EB) with three sub-levels. Def's App. 508-09, 689.
On March 2, 1995, Cadbury Schweppes acquired DPSU through Cadbury Schweppes' subsidiary, Cadbury Beverages, Inc. ("Cadbury"). Def's App. at 63, 434, 438. As part of the acquisition, many departments of DPSU were reorganized. After the reorganization, the merging parties gradually consolidated the finance and management information systems functions. Def's App. at 87-88, 492-93. During the reorganization, Brown was made the Vice President of Information Services. Def's App. at 91, 492-93, 533. As Director of Corporate Planning, Brown had enjoyed a job classification of E13; whereas in her new position of Vice President, she held a higher classification of E10. Despite the seemingly higher position after reorganization, Brown was dissatisfied with her new position and considered it a demotion. She contends that the vice president position involved highly technical and computer based skills that were beyond the scope of her educational background, training and work experience in finance and accounting. Both parties admit that the move to Information Systems was considered a developmental move and that she had been told she would be transferred back to a finance position within two years. Def's App. at 141. After the job change, Brown unsuccessfully sought out several opportunities to transfer back into various finance positions.
This would translate into level E under the new set of categories. Def's App. at 511, 532.
This translates into level F under the new classification system. Def's App. at 511-12, 532.
The last position in which Brown expressed interest was the position of CFO/Senior Vice President, Finance and Information Systems ("Senior Vice President position"). The position was vacated in January 1997 by Brown's direct supervisor, Lynn Lyall. On January 14, 1997, Brown met with Lyall, who said that he would recommend Brown as his replacement. Pl's App. at 96. According to Plaintiff, Lyall soon informed her that when he had recommended her for the position, John Brock, CEO of Cadbury Beverages, North America, told Lyall that Brown was "too difficult" to work with and "too direct to fit in with the executive team." Pl's App. at 6.
Plaintiff discussed her desire for the Senior Vice President position with several other DPSU managers in January and February 1997. On February 13, 1997, DPSU announced that it was considering external candidates for the position. Pl's App. at 99. At that point, Brown felt certain she had been denied the promotion. Pl's App. at 104. Alter having been denied several transfers to finance position, Brown felt she had been permanently sidetracked into a non-finance position without any foreseeable likelihood of change or promotion and tendered her resignation to DPSU on February 20, 1997. Pl's App. at 66. On that same day, she accepted a position at Blockbuster Video as Senior Vice President Finance. Pl's App. at 100. Four months later, DPSU finally named Michael Saltzman, a male candidate from the external search, as the new Senior Vice President Finance. Pl's App. at 261-63.
After Brown resigned from DPSU, she filed a claim for benefits under DPSU's Special Plan and Severance Benefits Program for Employees of Dr. Pepper/Seven Up Corp. ("Plan"). DPSU enacted the Plan in February 1994, prior to the acquisition by Cadbury. Def's App. at 434, 442-55. The stated purpose of the Plan was to "provide employees with a measure of job security that will encourage them to remain in the employ of [DPSU] at a time of wide spread market speculation regarding the continuing independence of [DPSU]." Summary of Plan, Section 1, Def's App. at 443. Brown filed for severance benefits under the theory that her position with DPSU was diminished after the acquisition and the changes involved an assignment of duties inconsistent with her previous position, authority, duties or responsibilities within the meaning of the Plan. Pl's Resp. at 4. Upon receipt of Brown's request for severance claims, DPSU conducted an investigation and concluded that her new position was a promotion rather than a diminution of position. Def's App. at 529.
The other relevant portions of the severance plan read as follows:
Section 3. Eligibility for Severance Benefits: A full time employee of [DPSU] . . . shall be eligible to receive Severance Benefits in accordance with Section 4 if:
(iii) (A) in connection with, upon or following a Change of Control of the Corporation, the employee is discharged within 24 months of the date of the occurrence of such Change of Control by either the Corporation or a Successor; or
(B) the employee terminates employment with the Corporation for Good Reason in connection with, upon or following a Change of Control of the Corporation (as defined herein) and within 24 months of the occurrence of such Change of Control.
Section 6. Certain Definitions: For purposes of this Plan, the following terms shall have the definitions set forth below:
(i) Termination with "Good Reason" shall mean
(A) the assignment to the employee of any duties inconsistent in any respect with the employee's position, authority, duties or responsibilities, or any other action by the Corporation (or a Successor) which results in a diminution in such position, authority, duties or responsibilities . . .
Any good faith determination of "Good Reason" made by the employee shall be conclusive; provided, however, that in the event the Corporation disagrees with any such determination by an employee, such dispute shall be settled by binding arbitration between the Corporation and such employee as provided in Section 10 below.
Section 11. Plan Administrator and Named Fiduciary: The Corporation is the administrator of the Plan (the "Plan Administrator") with the sole authority to interpret the Plan and manage its operation, and is also designated the "named fiduciary". Only the Plan Administrator is authorized to determine an individual's eligibility for Severance Benefits and other benefits hereunder.
As well as performing an internal investigation and evaluation of Brown's severance claim, DPSU also sought an independent review of her claim. DPSU contracted with Hay Management Consultants ("The Hay Group"), an internationally recognized compensation firm, to evaluate Brown's two positions using their objective job evaluation system. Def's App. at 693-94. Relying upon the information submitted by Brown, the Hay Group determined that the Vice President, Information Services position was higher than the Director, Corporate Planning position. Def's App. at 693, 723-24. Based upon both evaluations, DPSU denied Brown's request for severance benefits on March 18, 1997. Def's App. at 699.
On October 29, 1997, Brown filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and Texas Commission on Human Rights ("TCHR"). Def's App. at 258-59, 342-43. The EEOC charge alleged that DPSU constructively discharged Brown after denying her a promotion to the position of Senior Vice President Finance. Def's App. at 342. She followed the EEOC complaint with a lawsuit filed on January 26, 1998, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). She amended her complaint on February 8, 1999, to include claims for violations of the Employee Income Retirement Security Act ("ERISA"). She claims DPSU permanently side-tracked her career by placing her in a non-finance position and then refused to promote her or transfer her back into a finance position because she is a woman. She also alleges that DPSU wrongfully denied her severance request because her position as Vice President Information Systems is a diminished position, or at least a change substantial enough to qualify for benefits under the Plan. DPSU seeks summary judgment on all of the claims.
42 U.S.C. § 2000e, et seq. (West 1994).
29 U.S.C. § 1001, et seq. (West 1999)
DISCUSSION
A. Summary Judgment Standard
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustee, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id.
B. ERISA Claims
Brown's amended complaint asserts claims under 29 U.S.C. § 1132(a)(1)(B) (1999) to recover the severance benefits allegedly owed to her by DPSU. Parties agree that DPSU's Plan gave the Plan Administrator discretionary authority to determine eligibility for benefits. The Court applies an abuse of discretion standard when reviewing the denial of benefits by a Plan Administrator who has discretionary authority to make eligibility decisions. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Rhorer v. Raytheon Eng'rs and Constructors, Inc., 181 F.3d 634, 639 (5th Cir, 1999); Meditrust Fin. Servs. Corp. v. Sterling Chem., Inc., 168 F.3d 211, 213 (5th Cir. 1999). In conducting this inquiry, the Court must determine whether the administrator acted arbitrarily or capriciously. Meditrust, 168 F.3d at 214 (quoting Sweatman v. Commercial Union Ins., Co., 39 F.3d 594, 601 (5th Cir. 1994) (internal citations omitted)). "A decision is arbitrary only if `made without a rational connection between the known facts and the decision or between the found facts and the evidence.'" Meditrust, 168 F.3d at 215 (quotingBellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 828-29 (5th Cir. 1996)).
See supra n. 5 (quoting Section 11 of the Plan); Def's Mot. for Sum. J. Br. at 26; Pl's Mot. for Sum. J. Br. at 11. Parties do not contest that ERISA applies to this Plan.
The Fifth Circuit has developed a two-step inquiry for determining whether a plan administrator's decision constitutes an abuse of discretion. Initially, the Court determines the legally correct interpretation of the plan and considers whether the administrator's decision accords with that legal interpretation of the plan. See Rhorer, 181 F.3d at 639 (citingSpacek v. Maritime Assoc., I L A Pension Plan, 134 F.3d 283, 292-93 (5th Cir. 1998). If the administrator used a legally sound construction of the plan, then there was no abuse of discretion and the inquiry ends. Id. at 639-40. However, if the administrator did not use a proper legal interpretation of the plan, then the inquiry continues to the next step of determining whether the administrator's interpretation constitutes an abuse of discretion. Id. at 640. The abuse of discretion standard applies despite any alleged conflict of interest arising from employer's self-finding of the plan. Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1014 (5th Cir. 1992) (citingFirestone, 489 U.S. at 115). The alleged conflict weighs as a factor in finding an abuse of discretion. Id. Any finding of an abuse of discretion must be supported by substantial evidence.Meditrust, 168 F.3d at 215; Alcorn v. Sterling Chem. Inc. Med. Benefits Plan, 991 F. Supp. 609, 615-16 (S.D. Tex. 1998) (defining substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion").
1. Legal Interpretation of the Plan
The Fifth Circuit outlined three general factors that may aid in determining whether the administrator's interpretation of the plan is legally correct: (1) whether the interpretation is consistent with a fair reading of the plan; (2) whether the administrator has given the plan a uniform construction; and (3) any unanticipated costs resulting from different interpretations of the plan. See Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). Section 6 of the Plan provides an employee with severance benefits if, following an acquisition, the employee is "terminated with good reason." The Plan then defines good reason as "the assignment to the employee of any duties inconsistent in any respect with the employee's position, authority, duties, or responsibilities, or any other action by the Corporation (or a Successor) which results in a diminution in such position, authority, duties or responsibilities." DPSU interpreted this definition to require a demotion, or "step backward" in order to qualify for severance benefits. Def's App. at 434. When applying this interpretation to Brown's pre- and post-acquisition positions, DPSU determined that although her role as Vice President Information Systems consisted of very different duties and responsibilities, it did not constitute any type of demotion. Def's App. at 692-93. Defendants' interpretation of this language constitutes a fair reading of the Plan. When reading in its entirety the definition of termination for good cause in Section 6 of the Plan, a reasonable interpretation of the Plan could require the assignment of inconsistent duties to include a diminishment of the position.
Section 6 is reprinted in relevant parts at supra, n. 5.
Brown makes a couple of unmeritorious attacks on DPSU's interpretation of the Plan. The Plan allows an employee's good faith determination of good reason to be conclusive in a claim for severance benefits. See Section 6, Summary Plan, supra n. 5. Plaintiff challenges Defendants' interpretation of the Plan because their interpretation allows DPSU to challenge the employee's good faith determination of good reason. Pl's Resp. Br. at 17. She argues that this challenge directly contradicts Section 6 of the Plan. Id. Plaintiff's challenge fails, however, because when the section is read in its entirety, Section 6 clearly allows for the corporation to "disagree with any such determination by an employee."
See supra, n. 5.
Supra, n. 5.
Brown also argues that the Plan never defines the terms "duties, responsibilities, position, and authority," nor does the Plan define what amount of diminution is sufficient for purposes of being entitled to severance benefits. Pl's Resp. Br. at 18. Under her theory, the terms are ambiguous and must be construed in favor of Brown, who believed in good faith that she experienced a diminution in her position, responsibilities, duties, and authority under the terms of the Plan as she construed them, Id. The Court does not find these terms ambiguous. It seems clear that the terms refer to the overall position held by the employee rather than to any one single criteria. In light of the Court's reading of these terms, DPSU's interpretation of the Section was a fair reading of the Plan.
Addressing the second prong, Plaintiff also asserts that DPSU applied its interpretation of the Plan inconsistently. As evidence of this inconsistency, she points out DPSU awarded benefits to five or six other managerial employees who applied under the same Section, and that several other employees received severance benefits outside of the Plan. Pl's Resp. Br. at 17. Brown does not, however, explain how this creates an inconsistent application of the Plan. Plaintiff has accused DPSU of denying her benefits on the basis of her sex, but she admits that at least two women, Bertha Bowling and Nancy Ulrich, received severance benefits. Pl's Resp. Br. at 33. The undisputed evidence demonstrates that benefits were also denied to a fellow male employee, Timothy Sheehy. Def's App. at 693. Moreover, the Plan specifically accounts for managerial employees who may have separate severance benefits. Def's App. at 442, Summary of Proposed Severance Plan ¶ 6 ("To the extent other plans or employment contracts of the Company would provide other or additional benefits upon termination (such as continuing medical coverage or additional severance payments), the Eligible Employee would be entitled to receive the greater of the benefits available.). Without more information, the fact that other managers had supplemental severance packages does not create an inconsistency within the Plan. The Court cannot determine on what valid basis the Plaintiff alleges inconsistency in DPSU's application of the Plan.
In evaluating the last prong of the test, Brown's interpretation of the Plan would have very serious unanticipated costs. According to Brown's reading of the Plan, DPSU must award severance benefits to anyone who had a good faith belief that they bad been assigned tasks inconsistent with their pre-acquisition duties, responsibilities, position, or authority which the individual employee considered to be diminishing. Plaintiff argues that "the decision as to whether the plan is triggered rests with the executive herself based upon her good faith belief, rather than with the Plan Administrator or an independent evaluator." Pl's Resp. Br. at 4. Under Plaintiff's reading, DPSU would have no discretion at all in determining the suitability of severance benefits. While DPSU admittedly enacted the Plan for the employees' benefit, to allow the Plaintiff's interpretation to prevail would put the Plan at the mercy of its employees.
As all three factors weigh in DPSU's favor, the Court finds that DPSU used a legally correct interpretation of the Plan when evaluating Brown's request for severance benefits. As a result, DPSU cannot be found to have acted arbitrarily or capriciously. However, even if DPSU had used an incorrect legal interpretation of the Plan, it did not abuse its discretion in applying this interpretation.
2. Abuse of Discretion
There are three important factors to consider when determining whether the Plan Administrator abused its discretion in denying benefits to Brown: (1) the internal consistency of the Plan under the administrator's interpretation; (2) any relevant regulations formulated by the appropriate administrative agencies; and (3) the factual background of the determination and any inferences of bad faith. See Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (5th Cir. 1992); Batchelor v. International Brotherhood of Electrical Workers Local 861, 877 F.2d 441, 444 (5th Cir. 1989).
From a review by the Court, the Plan Administrator's interpretation of the Plan enhances rather than detracts from the Plan's internal consistency. Plaintiff failed to direct the Court to any internal inconsistencies caused by this interpretation. The Court has already determined that the relevant provisions of the Plan are not ambiguous. Therefore, Plaintiff's attempt to use the federal regulation's requirement that restrictive provisions be properly disclosed in the summary plan description is unpersuasive. See Rhorer, 181 F.3d at 634, (citing 29 C.F.R. § 2520.102-2(b)). Plaintiff also alleges that DPSU decided to deny her claim for severance benefits in bad faith, She cites "favoritism" as a factor in the decision, meaning that "there was some incorrect perception that she resigned from Dr. Pepper at the instigation of another employee or employees and it was for that reason that she was denied benefits." Pl's Resp. Br. at 19. The evidence she cites to does not support any such claim, and Plaintiff failed to produce any substantial evidence supporting her claim of bad faith.
Finally, DPSU reviewed a substantial amount of material in making its determination. DPSU's Vice President of Human Resources, William Burke, considered DPSU organizational charts and job descriptions, written and oral input from Brown, oral input from members of management who were familiar with these positions, his own personal familiarity with the positions, compensation and job bands or grades, job titles, scope of duties and responsibilities, reporting relationships and authorities. Def's App. at 692. DPSU did not stop there, but also contracted an independent reviewer, the Hay Group, to review all of the materials submitted by Brown in support of her severance claim. After reviewing the materials of several applicants, the Hay Group also concluded that Brown's new position as Vice President Information Systems did not result in a diminished position within the company. While an independent reviewer does not insulate an administrator from liability, when properly used, it certainly weighs against finding an abuse of discretion. See Alcorn, 991 F. Supp. at 617 (citing numerous cases wherein the Court relied upon investigations by third parties to find no abuse of discretion by the Plan Administrator).
In light of these factors, Plaintiff has failed to produce any genuine issue of material fact as to whether DPSU abused its descretion when it found Brown ineligible for severance benefits. Therefore, the Court hereby GRANTS Defendants' Motion for Summary Judgment as to the Plaintiff's ERISA claims.
C. Breach of Fiduciary Duty Claims
As well as bringing a claim for wrongful denial of benefits under 29 U.S.C. § 1132(a)(1)(B), Brown also alleges that DPSU breached its fiduciary duty with respect to the denial of benefits. Pl's Am. Compl. at ¶ 69. Federal ERISA law imposes a fiduciary duty on the plan administrator to administer qualifying plans solely in the interests of the plan participants. See 29 U.S.C. § 1104(1). Brown contends that DPSU breached this duty by having an employee of DPSU decide the merit of all severance claims. Pl's Resp. Br. at 21. Furthermore, DPSU self-funded the severance plan which created a pecuniary interest in denying Brown her benefits. Id. DPSU moves for summary judgment on the basis that Brown's ERISA claim for severance benefits preempts her claim for breach of fiduciary duty. Def's Mot. for Sum. J. Br. at 33. In light of the Supreme Court's decision in Varity Corp. v. Howe, 516 U.S. 489, 510 (1996), the Court finds for the Defendant.
In Varity Corp., the United States Supreme Court announced a rule that only allows a plaintiff with an ERISA cause of action to bring a private action for breach of fiduciary duty when no other remedy is available under 29 U.S.C. § 1132. Varity, 516 U.S. at 510-16. The Fifth Circuit recently applied this principle under circumstances very similar to the case at hand. See generally, Rhorer, 181 F.3d at 639. In Rhorer, the plaintiff's predominate claim consisted of an attempt to recover plan benefits under Section 1132(a)(1)(B). Id. However, the plaintiff also alleged breach of fiduciary duty for violating ERISA's disclosure requirements. The Fifth Circuit upheld the lower court's dismissal of the fiduciary duty claims finding that when § 1132(a)(1)(B) affords the plaintiff an avenue for legal redress, "she may not simultaneously maintain her claim for breach of fiduciary duty." Id.; accord Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610-11 (5th Cir. 1998) (affirming district court's dismissal of the breach of fiduciary duty claim because the plaintiff had adequate legal redress).
Similarly, Section 1132(a)(1)(B) affords Brown an avenue for legal redress of her claim for severance benefits under the Plan. Accordingly, she may not also bring her claims for breach of fiduciary duty. Therefore, the Court hereby GRANTS the Defendants' Motion for Summary Judgment as to the claim for breach of fiduciary duty.
D. Title VII claims
Title VII of the Civil Rights Act of 1964 prohibits various forms of employment discrimination, including discrimination on the basis of gender. 42 U.S.C.A. § 2000e-2(a)(1) (1994);Urbano v. Continental Airlines, 138 F.3d 204, 205-06 (5th Cir. 1998). The Supreme Court laid out the basic framework for analyzing an employment discrimination claim in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
42 U.S.C.A. § 2000e-2(a) reads as follows: "It shall be an unlawful employment practice for an employer — (1) to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex." 42 U.S.C.A. § 2000e-2(a)(1) (1994).
The ultimate issue in a case of discrimination under Title VII is whether the Plaintiff's gender was a factor in an adverse employment decision against her. Rhodes v. Guiberson Oil Tools, 39 F.3d 537, 542 (5th Cir. 1994). To defeat a motion for summary judgment, a plaintiff must first establish a prima facie case of discrimination. Fakuri v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997); Plemer, 713 F.2d at 1136. To do so, the plaintiff may prove her claim through either direct or circumstantial evidence. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 587 (5th Cir. 1998). If the plaintiff presents no direct evidence of gender discrimination, then her claims are subject to the Supreme Court's McDonnell Douglas test.
Under the McDonnell Douglas burden shifting test, the plaintiff first bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at 802. The prima facie case of discrimination requires the plaintiff to prove (1) she was a member of a protected class; (2) she was qualified for the position she was denied; (3) she suffered an adverse employment action; and (4) she was replaced by or treated differently than someone outside the protected class. McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." Id. If the defendant meets this burden, then the plaintiff must prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons but were instead pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The ultimate burden of persuasion as to the defendant's intentional discrimination remains at all times with the plaintiff. Id.
1. Timeliness and scope of the EEOC Charge
Defendants argue that Brown's Title VII claims are substantially limited by the timing and the contents of her EEOC complaint. It is undisputed that on October 29, 1997, approximately 250 days after she resigned from DPSU, Brown filed a complaint with the EEOC naming "Dr Pepper/Seven-Up" as her employer. Defs' App. at 342. The EEOC charge contained allegations of sex discrimination in DPSU's constructive discharge of Brown after denying her a promotion and in denying her claim for severance benefits. Id. However, in her briefing, Plaintiff now alleges that:
Plaintiff's EEOC complaint reads in pertinent part,
"I. Personal Harm "I was constructively discharged after I was denied a promotion to the position of Senior vice President Finance in January 1997. I was denied severence [sic] benefits.
"II. Respondent's Reason for Adverse Action "I was told by members of the executive team, Bill Burke, Bob Stack. Patrick Fleming, Jack Kilduff, and Tony Bangs that I was the most qualified, however, I was a woman and I wasn't one of the boys. My request for severence [sic] was denied because I did not meet the threshold requirement as defined.
"III. Discriminatory Statement "I believe I have been discriminated against because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended."
"Defendant clearly subjected Plaintiff to adverse employment action through discrimination in the terms, conditions, and privileges of employment, including decreasing her responsibilities, duties, and authority, in failing to promote her to the Senior Vice President Finance and Information Services Position, in failing to transfer her back to the finance department, in not providing her with pay equal to that of her male counterparts, in failing to award her severance benefits, and by constructively discharging her."
Pl's Resp. Br. at 29. The Defendants argue for the dismissal of all Title VII claims, except for the allegation of denial of promotion and constructive discharge. First, DPSU argues that Plaintiff is limited to the discriminatory acts she identified in her EEOC charge. Second, Defendant maintains that all other charges are untimely and barred under the statute of limitations.
a. Scope of EEOC Allegations and Actors
Defendants argue that the Court should limit Plaintiff's Title VII claims to constructive discharge and failure to promote because those are the only two claims presented in her EEOC charge.
Defendants make a brief argument that the claim for severance benefits is a post-employment action ineligible for Title VII relief. The Court will address this issue infra, Section D2.
Courts do not have jurisdiction to consider claims brought under Title VII unless the aggrieved party has first exhausted her administrative remedies by filing a charge with the EEOC. See 42 U.S.C. § 2000e-5(f)(1); National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994). Therefore, civil complaints filed under Title VII may only consist of discrimination like or related to allegations contained in the EEOC charge. National Ass'n of Gov't Employees, 40 F.3d at 711. The EEOC charge serves the primary purpose of providing the employer with notice of the alleged discrimination so that they may begin to activate appropriate conciliatory measures. Terrell v. United States Pipe Foundry Co., 644 F.2d 1112, 1122 (5th Cir. 1981), vacated on other grounds, 456 U.S. 955 (1982). Accordingly, the failure to assert a claim of discrimination in the EEOC charge or for it to be developed in the course of a reasonable EEOC investigation of that charge prohibits the claim from later being brought in a civil suit.National Ass'n of Gov't Employees, 40 F.3d at 711-12.
Neither the verbatim allegations of the EEOC charge nor the actual scope of the EEOC's investigation will determine the limits of a plaintiff's civil complaint. Clark, 18 F.3d at 1280. Courts instead look at all of the information presented to the EEOC and determine what allegations would reasonably be expected to grow from the EEOC investigation. Clark, 18 F.3d at 1280 n. 9;Clemmer v. Enron Corp., 882 F. Supp. 606, 610 (S.D. Tex. 1995) ("The reasonable limits of an EEOC investigation have been held to include . . . claims which arise as a reasonable consequence of the claims alleged in the EEOC charge."). In Clark, the court made this determination by looking at the EEOC charge along with the attached affidavit.
Plaintiff's EEOC charge alleged sex discrimination based upon her constructive discharge, denial of promotion to Senior Vice President position, and denial of severance benefits. See supra n. 9. All of these charges relate to a very specific period of time at the very end of her employment with DPSU. The EEOC charge does not make reference to any type of prior discriminatory behavior by DPSU, any previous demotions or denials of other promotions. Nor does the charge make any reference to genera! disparate treatment by DPSU based upon employees' gender. The EEOC did not perform any in-depth investigation of Plaintiff's claims. However, a reasonable investigation could have been limited to the circumstances surrounding Plaintiff's resignation from DPSU and may not have expanded to include Plaintiff's last two years at DPSU. Plaintiff's claims for unequal pay and prior denials of promotions are beyond the scope of her EEOC charge.
This does not prohibit Plaintiff from using these allegations as evidence of pretext for her remaining claims.
Defendant Cadbury Beverages, Inc., seeks dismissal of Brown's Title VII claims because she did not identify the entity as her employer in the EEOC charge. Def's Br. in Support of Mot. for Sum. J. at 7. As a general rule, a court may not entertain a Title VII action against a party not named in the EEOC charge.Crawford v. Western Elec. Co., Inc., 614 F.2d 1300, 1306 (5th Cir. 1980). However, an exception to this rule exists when the noncharged party and the charged party have a similarity of interests. See Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1358-59 (11th Cir. 1994); Matthews v. Houston Independent School District, 595 F. Supp. 445, 447 (S.D. Tx. 1984) ("Generally, these cases have allowed suits against unnamed persons who were substantially identical with persons named in the charge, or when the named and the unnamed defendants are alleged to have engaged in a common discriminatory scheme."). Title VII claims have also been allowed to proceed against the noncharged parent company of a charged wholly owned subsidiary when the two companies shared virtually all key personnel and the parent company controlled the employer's activities. Hill v. Singing Hills Funeral Home, Inc., 77 F.R.D. 746 (N.D. Tex. 1978).
Brown failed to plead any of these exceptions apply for excusing her omission of Cadbury Beverages, Inc. from her EEOC complaint. In fact, she did not even address the argument. This is one of the numerous deficiencies in Brown's Title VII claim that justifies this Court granting the Defendants' motion for summary judgment. Because Brown failed to either identify Cadbury Beverages, Inc. in her EEOC charge or argue for an exercise of the Court's jurisdiction regardless of the omission, the Court hereby GRANTS the Motion for Summary Judgment of Defendant Cadbury Beverages, Inc. as to Brown's Title VII claims.
The Court's ruling infra on Plaintiff's inability to prove that the Defendants' proffered legitimate business reason for its actions were actually pretext for sex discrimination would provide an alternative and sufficient basis for granting summary judgment on these Title VII claims.
b. Timeliness
Discrimination claims must ordinarily be filed with the EEOC no more than 180 days from which the "alleged unlawful employment practice occurred." 42 U.S.C.A. § 2000e-5(e)(1) (1994). However, if the alleged discrimination took place in a state or locality that has its own antidiscrimination laws and an agency to enforce those laws, and if the person bringing the charge institutes proceedings with that agency, then the time period for filing claims with the EEOC is extended to 300 days. Id. In this case, the discrimination alleged by Brown took place in Texas, which has both antidiscrimination laws and an antidiscrimination agency, the Texas Commission on Human Rights ("TCHR"). In Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994), the Fifth Circuit held that because of the special relationship between the EEOC and TCHR, filing a claim with the EEOC automatically constituted a filing of the claim with the TCHR, thus triggering the extended limitation period. Plaintiff resigned from DPSU on February 20, 1997, marking the latest possible day from which the statute of limitations began to run. Approximately 250 days later, on October 29, 1997, Brown filed her EEOC complaint thereby extending the limitations period to 300 days. Although Plaintiff makes a reference conceding the applicability of the 180 day limitation period, the Court applies the 300 day statute of limitations period, meaning Plaintiff filed her EEOC complaint in a timely manner. With these preliminary matters addressed, the Court can now evaluate Plaintiff's claims under the McDonnell Douglas analysis.
The Fifth Circuit's ruling in Griffin v. City of Dallas, recognized the Worksharing Agreement between the Texas Commission on Human Rights ("TCHR") and the EEOC. 26 F.3d 610, 612 (5th Cir. 1994). This agreement made the EEOC the agent of the TCHR for the limited purpose of receiving charges of discrimination on behalf of the TCHR. Id. Because the EEOC acts as the agent of the TCHR, the Griffin Court held that a complaint filed with the EEOC and addressed to the TCHR serves to extend the statute of limitations to 300 days. Id. at 613.
2. Prima Facie Case
As detailed above, when making a Title VII claim, Plaintiff bears the burden of proving her prima facie case of sex discrimination. See McDonnell Douglas, 411 U.S. at 802. Defendants base in part their motion for summary judgment on all of Plaintiff's Title VII claims on Plaintiff's failure to meet the elements of her prima facie case. Parties dispute only one prong of the prima facie case — whether Plaintiff actual actually experienced an adverse employment action. The Fifth Circuit has defined adverse employment actions as "ultimate employment decision" such as "hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997).
Plaintiff alleges three different adverse employment decisions that are relevant to her claims. First, she asserts that she was constructively discharged from DPSU. Constructive discharge can form the basis of a Title VII claim. Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997); Guthrie v. Tifco Indus., 941 F.2d 374, 377 (5th Cir. 1991). "To show constructive discharge, an employee must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign." Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994). Plaintiff failed to produce evidence tending to demonstrate that her decision to resign was reasonable based upon her employment conditions. DPSU had previously addressed any pay differentials that may have existed so that even if she was still receiving a lower salary than some of her male counterparts, the 40% pay increase that she experienced over the course of nine months mitigates against finding her plight intolerable.
Brown consistently refers to her `demotion' to the information services department. Becoming vice president of a department certainly does not constitute the type of demotion contemplated in the constructive discharge context. Furthermore, even if her position in information systems required her to perform work outside of her field, the work was still at an executive level consisting of challenging and respected work. Cf. Guthrie, 941 F.2d at 377 (assuming that plaintiff presented a case of constructive discharge where employer demoted him and assigned him to work for less experienced colleague 17 years his junior);see also Jurgens v. EEOC, 903 F.2d 386, 392 (5th Cir. 1990) (evaluating denial of promotion and finding new job, "though subjectively undesirable to [plaintiff], was not inherently demeaning, especially when it was offered as part of a comprehensive, racially neutral reorganization").
Neither does the new job assignment constitute a career-ending action within the meaning of Hopkins v. Price Waterhouse, 825 F.3d 458 (D.C. Cir. 1987) reversed on other grounds, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Hopkins, after the attorney had been denied partnership and offered a permanent position as senior manager, her department declined to renominate her for partnership. At that point, the court reasoned that she could reasonably anticipate never being promoted. Plaintiff, however, was being nominated for promotions and was considered the top and obvious choice by several of the managers. Moreover, when Plaintiff initially accepted the position, she did so with the intent of returning to finance within two years time. Two years had not yet passed since the reorganization. Therefore, even if this did constitute a discriminatory denial of promotion, it simply does not negate all expectations of future advancement.See Jurgens, 903 F.2d at 391 (distinguishing Hopkins on the basis of expectation of advancement). Even after considering the past promotions allegedly denied to Brown, the Court does not find her conditions at DPSU to be so intolerable so that a reasonable employee would have been compelled to resign.
As a second type of adverse employment action, Plaintiff alleges that DPSU denied her a promotion to the Senior Vice President position because of her sex. Approximately one month after Lyall resigned from the Senior Vice President position, board member Fleming announced in a staff meeting that the company would be considering external candidates for the Senior Vice President position and that the position would not be filled for several months. Pl's App. at 7, 99. Plaintiff asserts that the company policy was to promote internal candidates whenever possible. Pl's App. at 115, 118-19. Therefore, Plaintiff felt certain that she had been denied the promotion. The Defendants counter by arguing Plaintiff resigned before the company made any decision for filling the vacancy.
Considering the undisputed evidence before the Court, it cannot be determined whether Plaintiff had been passed over for the promotion. Plaintiff did not have the opportunity to depose several of the board managers prior to addressing this motion. These individuals would know whether Brown had been rejected for the position prior to her resignation. Therefore, the Court will assume for the purposes of this motion that Plaintiff was denied the promotion to Senior Vice President.
Plaintiff also identifies the denial of severance benefits as her third form of adverse employment action. The Defendants object, claiming that the denial of severance benefits cannot constitute an adverse employment action because it occurred subsequent to Brown's resignation. In Robinson v. Shell Oil Co., Justice Thomas wrote for a unanimous Supreme Court in finding that "employees" as used in antiretaliation provision of Title VII can include former employees. 519 U.S. 337, 341 (1997). The Supreme Court held that former employees can maintain a cause of action under Title VII for postemployment retaliatory actions — specifically for writing an unfavorable letter of recommendation for a former employee in retaliation for filing a discrimination claim with the EEOC. Robinson did not, however, address whether former employees receive the protection under any other sections of Title VIII.
Plaintiff does not claim that DPSU denied her severance claim in retaliation for her charges of sex discrimination. Nor did Plaintiff make any argument for an expansion of the Robinson case to allow her to allege a post-employment action as an adverse employment decision required by Section 2000e-2. Without full briefing on the matter, the Court will not decide whether a post-employment wrongful denial of severance benefits constitutes an adverse employment action under Title VII. In fact, the Court is rather skeptical of this position considering ERISA provides Brown with an avenue for relief However, taking the position most favorable to Brown, the Court will assume for the purposes of this motion that if DPSU denied Brown her benefits on the basis of her sex, then this was a discriminatory employment decision actionable under 42 U.S.C. § 2000e-2.
At the time DPSU denied her claim for severance benefits, Brown had not yet made any formal complaint against DPSU. See Defs' App. at 342 (Brown's EEOC Charge dated October 29, 1997); Defs' App. at 334 (Defendants' denial of Brown's severance claim dated March 18, 1997). Moreover, the letter she wrote to DPSU complaining about their unfavorable treatment of her was not written until after DPSU had already denied her benefits claim.See Letter from Janette Johnson, Attorney for Plaintiff to Plan Administrator (May 16, 1997) (Pl's App. at 13-19).
3. Legitimate Non-Discriminatory Reasons and Pretext
As stated above, once Brown makes Out a prima facie case for sex discrimination, DPSU has the opportunity to offer legitimate business reasons for its actions. In order to avoid summary judgment, Brown must then demonstrate that Defendant's proffered reasons are actually pretext for sex discrimination. Burdine, 450 U.S. at 253. To establish pretext, Brown cannot rely upon her subjective belief that DPSU discriminated against her or merely refute the nondiscriminatory reasons advanced by her employer.See Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997); Ray v. Tandem, 63 F.3d 429, 434 (5th Cir. 1995); Bienkowshi v. American Airlines, Inc. 851 F.2d 1503, 1508 (5th Cir. 1988). Moreover, she cannot rely upon stray remarks, statements by non-decision makers or opinions to satisfy her burden. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41-42 (5th Cir. 1996) ("To be probative, allegedly discriminatory statements must be made by the relevant decision maker."). She must provide substantial evidence from which a reasonable inference can be drawn that the Defendant's proffered reasons are false; a mere shadow of a doubt is insufficient. EEOC v. Louisiana Office of Community Serv., 47 F.3d 1438, 1444 (5th Cir. 1995). However, if Brown can raise a genuine issue of material fact as to whether she has established pretext, that will suffice to avoid summary judgment.
DPSU offers three legitimate business reasons for refusing to promote Brown and denying her severance claim. DPSU contends that: (1) Brown's management style clashed with that of the board of management; (2) Brown's experience came from the Dr. Pepper side of business rather than the Cadbury side; and (3) Brown did not qualify for severance benefits under the terms of the Plan. The Court will evaluate these first two reasons together.
Because Brown resigned from DPSU prior to its making a hiring decision for the available Senior Vice President position, DPSU argues that the Court should merely look at DPSU's legitimate business reasons for not immediately promoting Brown to the position. As discussed supra, Brown disputes this characterization and contends that she had already been denied the promotion. For the purposes of determining pretext, the Court will treat the situation as though she had been denied the position.
DPSU identifies concerns about Brown's management style as a legitimate business reason for its actions in considering her for the Senior Vice President position. Specifically, Brown worked on a quarterly basis with Brock and the other members of the board of management. Def's App. at 177. At the time, Brock served as the CEO of Cadbury Beverages North America and the senior member of the board of management. Brock and other members of the board of management disliked Brown's style. Id. They considered her to be too direct and too difficult to work with. Def's App. at 178, 277-78. During her deposition, Brown compared her management style with Brock's style. She described Brock's style as "more of a consensus style, and [Brown's] was more of a benevolent dictatorship style." Def's App. at 179.
As for the board's predisposition for a candidate with Cadbury experience, Brown was aware of Cadbury's heavy influence in filling the empty Senior Vice President position. Def's App. at 180. She also believed that after the acquisition, people from the Dr Pepper side of the company received less favorable treatment than those employees who came from Cadbury. Def's App. at 106-07. One of the managers, John Kilduff, testified about the differences between Brown's management style and the general Cadbury style. In his words, "Ms. Brown was known for her very direct and independent management style, which was more in the style of DPSU prior to the acquisition. Following the acquisition, Ms. Brown's management style had at times clashed with the more consensual style of some members of senior management and the Board of Management with a Cadbury background." Def's App. at 458. Kilduff also told Brown, "I thought her style was going to be an issue and that it was going to be a challenge for her to win over the `Cadbury' people." Def's App. at 459. Brown admits that during a conversation with Kilduff, he told her that she would face a hard time getting the promotion because she came from the Pepper philosophy. Def's App. at 277. Bill Tolaney, the Senior Vice President of Corporation Relocation and Building, also predicted she would not get the promotion because she was a "Pepper person." Def's App. at 278.
Plaintiff argues that these reasons are merely pretext for sex discrimination. She offers several statements of various managers as support for pretext. Lyall allegedly told Brown that the "good old boys network at the company stood in the way of Plaintiff's consideration for the position." Pl's Resp. Br. at 31. However, Lyall's opinion as a non-decision maker is insufficient to preclude summary judgment. Jack Kilduff, COO of DPSU, told her that her "biggest obstacle to the position was breaking into the `boys club' with Mr. Brock." Pl's App. at 7. Kilduff himself, however, had worked with Brown for ten years and considered her as his top and obvious choice to fill the position. Pl's App. at 7. According to Kilduff, Brown's gender could only be an asset because she would add some diversity to the board of management. Def's App. at 189. Although William Tolaney expressed his opinion that her quest for the position was futile, he was not a decision-maker in the hiring process. Def's App. at 278. Tolaney allegedly told Brown that she may have trouble getting the job because she is a woman; however, Brown may have been the one to actually initiate the conversation about whether her sex would play a part in the decision. Def's App. at 194. The alleged remarks made by members of the executive team about her sex often contradict Brown's purpose and do not provide sufficient evidence of pretext to defeat summary judgment. Moreover, despite Plaintiff's arguments, the Court declines to find the description of her as "direct" and "difficult to deal with" as euphemisms for sex stereotyping. prohibited by Title VII. See generally, Price-Waterhouse v. Hopkins, 490 U.S. 228 (1988).
Plaintiff also attempted to demonstrate pretext by citing to DPSU's more favorable treatment of its male employees. Plaintiff did not produce any evidence proving her allegation of men being paid higher salaries at DPSU. Even if she had evidence of some discrepancy in salaries, Plaintiff has not negated DPSU's explanation that any difference between Brown's salary and those of male managerial staff immediately following the acquisition resulted from Cadbury's use of a generally higher pay scale than DPSU. It is undisputed, however, that Brown received a 40% pay raise during the months following the acquisition of DPSU by Cadbury. Def's App. at 531-56. Plaintiff's own career at DPSU contradicts her claim that the career advancements and promotions were given predominately to men. During her seventeen years at DPSU, Plaintiff advanced from working as the accountant for one of DPSU's company-owned bottling plants to serving as a Vice President of the corporation. DPSU also paid for Brown to attend graduate school, where she obtained her MBA in economics and finance as well as her CPA license. Def's App. at 26-28. Finally, Plaintiff testified that although she desperately wanted to return to a finance position, several of the available positions were given to men. This alone will not support a finding of sex discrimination, especially considering the fact that one of the vice president finance positions that Brown sought was filled by a woman, Beth Guest. Brown Depo., Def's App. at 167. This strongly negates her argument that DPSU denied her an opportunity to transfer back into finance because of her sex.
The Court notes that the very first fact presented in Plaintiff's Response to Defendants' Motion for Summary Judgment belies her contentions: "In her seventeen year employment in the Finance Division of DPSU, Plaintiff enjoyed increasing areas of responsibility." Pl's Am. Resp. at 1.
Plaintiff has also failed to adequately rebut DPSU's stated legitimate business reason for denying her request for severance benefits. As discussed above, DPSU had an adequate basis for determining that Brown did not qualify for severance benefits under its Plan. Plaintiff has simply not met her burden of demonstrating by a preponderance of the evidence that any of DPSU's stated legitimate business reasons for its actions were pretext for sex discrimination, As such, the Court hereby GRANTS Defendants' Motion for Summary Judgment for Plaintiff's Title VII claims.
CONCLUSION
For the reasons stated herein, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claims under ERISA, Title VII, and for breach of fiduciary duty. As a result, all Plaintiff's claims against all of the Defendants in this action are DISMISSED with prejudice.
So ORDERED, this 11th day of April, 2000.