Opinion
Civil Action No.: RDB-05-2983.
March 20, 2008
MEMORANDUM OPINION
This employment discrimination action arises out of an Amended Complaint filed by Laurie A. Jacobsen ("Plaintiff" or "Jacobsen") against her former employer, Towers Perrin Forster Crosby, Inc. t/a Towers Perrin ("Defendant" or "Towers Perrin"). Plaintiff's Amended Complaint (Paper No. 9) includes five counts all arising from her former employment at Towers Perrin: I) failure to promote on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); II) failure to promote on the basis of sex in violation of Article 49B of the Maryland Annotated Code; III) breach of contract; IV) violation of Maryland's Wage Payment and Collection Statute; and V) intentional infliction of emotional distress. By Order dated October 31, 2006, this Court dismissed Counts II and V as failing to state a claim upon which relief can be granted. In the pending submissions, Plaintiff has chosen to voluntarily abandon pursuit of Counts III and IV. Therefore, Counts III and IV are hereby voluntarily DISMISSED. Thus, Count I of Plaintiff's Amended Complaint is the last claim remaining before this Court.
( See Pl.'s Mem. Opp. Summ. J. 33 ("Based on a review of the facts developed during discovery and applicable case law, [P]laintiff has decided not to pursue her claim for breach of contract and for violation of Maryland's Wage Payment and Collection statute.").)
Currently pending are two motions: Defendant's Motion for Summary Judgment (Paper No. 28) and Defendant's Motion to Strike (Paper No. 32). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED and Defendant's Motion to Strike is GRANTED.
BACKGROUND
As the nonmoving party, the facts are viewed in a light most favorable to the Plaintiff. Towers Perrin is a global consulting firm that provides services in the areas of human resources, accounting, management, and insurance. Jacobsen initially began working for Towers Perrin in 1981 as an employee benefits specialist, but she left the company in 1990 to pursue other career opportunities. (Jacobsen Dep. 14-15.) In 1994, she began working for Working Concepts, Inc. as the Director of Benefits and Compensation. ( Id. at 31-34.) Working Concepts was founded by Brian McIntyre ("McIntyre"), a former co-worker of Jacobsen's at Towers Perrin. ( Id.)
On January 1, 2002, Jacobsen once again worked for Towers Perrin when it acquired Working Concepts. ( Id. at 73.) Working Concepts was integrated into Towers Perrin as the Working Concepts Division. Jacobsen's new job title was Director, Benefits and Compensation Services and her job duties and responsibilities remained substantially the same after Towers Perrin's acquisition. ( Id. at 39, 73.)
McIntyre's job title was Head of the Working Concepts Division. According to Jacobsen, McIntyre's job was divided into two discrete types of functions: 1) non-consulting functions "such as personnel, financials, technical support, marketing, sales, vendor alliances, professional development, and practice management . . ."; and 2) consulting functions, "which included providing consulting services to clients and supervising other consultants." (Pl.'s Mem. Op. Summ. J. 7.) Jacobsen testified that she performed both types of functions at Towers Perrin in her role as Director. (Jacobsen Dep. 239-242.) She was actively involved in projects beyond her practice area and she participated in non-consulting functions, especially marketing, sales, vendor alliances, and practice management. (McIntyre Dec. ¶ 2.) Indeed, McIntyre and at least one other co-worker considered her "second-in-command" of the Working Concepts Division behind McIntyre. ( Id.; MacLaren Dep. 64.)
In January 2003, McIntyre informed senior management of the Working Concepts Division that he was starting a new company named Work Strategy. (Jacobsen Dep. 118-19.) At least five Working Concepts Division employees left to join McIntyre at his new company, but Jacobsen did not. ( Id. at 125.) She testified that she believed McIntyre could not ask her to join Work Strategy because a nonsolicitation agreement contained in his employment contract with Towers Perrin prohibited him from doing so. She also believed that "the opportunity [to join Work Strategy] was there" if she approached him in the future. ( Id. at 128-29.)
Steve Fein ("Fein") was a Towers Perrin principal in its Stamford, Connecticut office, responsible for overseeing the company's Human Resources Delivery Systems, which included the Working Concepts Division. ( Id.) Before McIntyre decided to leave Towers Perrin, Fein and McIntyre had a mutual understanding that the day-to-day operations of the Working Concepts Division would be left with McIntyre. (Fein Dep. 18-19.) After McIntyre's decision, however, Fein became more involved with the Working Concepts Division. (Jacobsen Dep. 131.)
Following McIntyre's decision to leave Towers Perrin, Fein decided to travel to the Columbia, Maryland office of the Working Concepts Division to meet with management employees. ( Id.; Jacobsen Dep. 136.) He was initially scheduled to meet with two employees on Thursday, February 6, 2003, and five more employees on Friday, February 7, 2003, with Jacobsen originally scheduled as the second meeting on Friday. (Jacobsen Dep. 136-38.) After Fein learned that McIntyre had already informed management employees of his departure, he rearranged his schedule, deciding instead to begin meeting with management employees on Monday, February 3, 2003. ( Id.) Jacobsen was rescheduled as the second meeting on February 3, 2003, but was unable to meet with Fein on that date because he was in closed-door meetings with others and she had to leave at noon for an out-of-town business commitment that would keep her away from the office until Thursday. ( Id.) Because Jacobsen was unable to meet with Fein on Monday, she rescheduled the meeting for Friday, February 7, 2003. ( Id. at 139.)
During her meeting with Fein, Jacobsen indicated that she believed that the Working Concepts Division should become more integrated with Towers Perrin, a transition already initiated by Fein. ( Id. at 157.) Fein and Jacobsen discussed which consultants were most needed at Towers Perrin, a conversation that required Jacobsen to state her opinion of several consultants' skill sets. ( Id. at 161, 165-66.) Additionally, Fein and Jacobsen discussed the Working Concepts Division's business model. Fein mentioned several different restructured models he was considering for the division, including a "pool model" and a "regional model." ( Id. at 168-69.)
Jacobsen had also planned to discuss with Fein her interest in assuming McIntyre's role as Head of the Working Concepts Division, but refrained from doing so after Fein informed her that McIntyre would remain at Towers Perrin for approximately twenty-five percent of his time. ( Id. at 151-52.) Jacobsen expressed her disagreement with Fein's strategy of keeping McIntyre on a partial basis. ( Id.) Jacobsen also questioned whether McIntyre would actually follow through with the plan to devote twenty-five percent of his time, a commitment he ultimately did not keep. ( Id. at 172-73.)
During the week of February 3, 2003, Fein met with at least three other individuals before he met with Jacobsen — McIntyre, Jamie MacLaren ("MacLaren"), and Mike Irvine ("Irvine"). Fein unequivocally testified that he did not offer the position of Head of the Working Concepts Division to anyone because he "was going to do that job for the foreseeable future." (Fein Dep. 40-41.) Fein also stated that he was not "open-minded" about replacing McIntyre with someone other than himself. ( Id. at 45.) In support of her Opposition to Defendant's Motion for Summary Judgment, Jacobsen submitted a declaration by McIntyre, in which he states as follows:
I understand also that Steve Fein said in his deposition that he never asked anyone at Working Concepts if they were interested in becoming Head of the Working Concepts division after I left. That is not true. . . . After Jamie MacLaren talked with [Fein], he told me that [Fein] asked him if he wanted the job. I was surprised that [Fein] would ask [MacLaren] that, and I told [Jacobsen] about it. Soon thereafter, Mike Irvine told me about his meeting with [Fein] and he also said that [Fein] had asked him if he wanted the job. I spoke with [Jacobsen] and said something to the effect of: "You'll never guess what — [Fein] just offered the job to [Irvine], too." My understanding from my conversations with [MacLaren] and [Irvine] was not that they had firm job offers, but that [Fein] expressed to them that the job was available and he was willing to consider them for the job if they were interested.
(McIntyre Decl. ¶ 15.)
MacLaren stated in his deposition that "[w]e had a discussion during that meeting. [Fein] asked me if — I wouldn't say he completely offered me the job, but he wanted to know what would I — I would do if he were to give me the company to run or the division to run. And the discussion was completely around what I could do." (MacLaren Dep. 14-15.) MacLaren acknowledged that Fein had indicated he would be taking over McIntyre's position for the "short term." ( Id. at 37.) Later in the deposition, MacLaren stated that although he "didn't feel like it was an offer, [he] felt like an offer was coming after that." ( Id. at 39-40.)
Although Jacobsen did not think MacLaren "was given any tenets of a job offer," McIntyre told Jacobsen that he had learned through MacLaren that Fein had offered MacLaren the position. (Jacobsen Dep. 178.) Irvine did not submit any sworn statements during discovery, but MacLaren testified that Irvine told him that Fein had also offered him the position. (MacLaren Dep. 37 ("From what [Irvine] told me, [Fein] offered him the position to run the company.").)
The following week, Fein again visited the Working Concepts Division's Columbia, Maryland office to announce McIntyre's departure to the nonmanagerial employees of the Working Concepts Division. (Jacobsen Dep. 192, 195.) Fein did not mention any possible replacement for McIntyre at the meeting. ( Id. at 192.) On February 17, 2003, Fein sent an email to Working Concepts employees that stated in part as follows:
For the time being, I will serve as manager of Working Concepts. I will be working closely with the management team (Laurie Jacobsen, Mike Irvine, Jamie Mac[L]aren, Nov Omana, and Lorene Vickery) to determine the appropriate organizational structure on a going forward basis. I will of course be receiving guidance and counsel from [McIntyre] as well.
(Def.'s Mot. Summ. J., Ex. 11.)
On February 27, 2003, Fein sent Jacobsen an email that reassured her that her compensation for 2003 would not be negatively impacted as a result of the "significant changes" underway at the Working Concepts Division. (Def.'s Mot. Summ. J., Ex. 12.) According to the email, Fein wanted to ensure her that "money does not de-motivate you from remaining at Working Concepts and working with us to continue to grow the firm." ( Id.) Jacobsen understood this email as an example of Fein "taking measures to guarantee compensation to employees . . . [and] to [her] specifically." (Jacobsen Dep. 205.) Jacobsen also believed that the email indicated that Fein wanted to keep her at the company. ( Id.)
Fein and Jacobsen next met on March 3, 2003, after each had returned from vacation. ( Id. at 225.) By this time both MacLaren and Irvine had left the company. At the meeting, Jacobsen expressly asked Fein for the position of Head of the Working Concepts Division. ( Id. at 225-231.) Fein did not directly respond, but indicated to Jacobsen that they "would run this together." ( Id.)
The following day, March 4, 2003, Fein met with Jacobsen, Nov Omana, and Lorene Vickery to discuss the organizational structure of the Working Concepts Division. Fein suggested that the consulting group be divided into geographical regions (east, central, and west), with teams of consultants reporting within the particular regions. ( Id. at 237-38.) Under that restructuring plan, there would also be a separate infrastructure group. Fein asked Jacobsen whether she would be interested in either the East Region Manager position or the Manager of Infrastructure position, and Jacobsen indicated that she was interested in both. ( Id. at 255.) After Fein asked her which she would prefer, Jacobsen stated that she would choose the East Region Manager position. ( Id.)
The same group met again to continue their discussion on March 5, 2003. After being asked again which position most appealed to her, Jacobsen told Fein that she would select the East Region Manager position if she had to choose, but that she could see herself fulfilling the role required of the Manager of Infrastructure as well. ( Id. at 263.) Jacobsen did not interpret Fein's inquiry as a formal job offer. ( Id.)
In the meeting on March 5, 2003, Jacobsen also told Fein that she wanted to take over McIntyre's position. ( Id. at 269.) Fein told Plaintiff that she would not be well received by other employees because they would not "accept her in a lead role" and that certain employees might leave the company as a result. ( Id. at 270.) Fein based this on feedback he had received from at least one other employee, Libby Valentine. (Fein Dep. 96.) Furthermore, Jacobsen has acknowledged that she was aware that certain other employees regarded her as being difficult. (Jacobsen Dep. 270-72.) Thus, it is undisputed by the parties that some employees at the Working Concepts Division did not like Jacobsen's management style.
Just after midnight on the morning of March 6, 2003, Fein left Jacobsen a message that explained more specifically the job requirements for the East Region Manager and the Manager of Infrastructure positions. ( Id. at 275.) The next day, Plaintiff again asked for McIntyre's former position and she told Fein that she would leave Towers Perrin if she did not receive it. ( Id. at 269-70, 279-80.) Fein responded once again that he could not give her the position, but that she had a choice between the East Region Manager and Manager of Infrastructure positions. ( Id. at 283.) In response to a question regarding his conversation with Jacobsen on March 6, 2003, Fein testified as follows:
So, the context for that discussion was that [Jacobsen] didn't — the two roles that I had offered to [Jacobsen] were not acceptable to her. She wanted to have [McIntyre's] job. And I told her that I was going to take that job. And she very strongly wanted to have that job. And so, the context of that discussion, her asking why I wouldn't give her that job, in addition to pointing out that, you know, that I wanted to take it for a lot of reasons having nothing to do with her, but that, in addition, that my perception from feedback I had received from some employees is that it may not be well received if she had that role.
(Fein Dep. 95-96.) Fein also asked that Jacobsen give him more time because he might be able to give her McIntyre's former position in the future. (Jacobsen Dep. 283.) In addition to her acknowledgment that she had difficulties in her relationships with other employees, Jacobsen has acknowledged that Fein did not want her to leave her employment. ( Id.)
On March 6, Fein told Jacobsen again that he could not give her the position of Head of the Working Concepts Division, but he did not state a reason. (Jacobsen Dep. 280.)
On March 7, 2003, Plaintiff orally informed Fein that she was resigning. ( Id. at 287.) Fein was apologetic that things didn't work out and stated that he would have liked working with Jacobsen. ( Id.) On March 10, 2003, before Jacobsen handed in her formal resignation letter, Jacobsen received a salary increase, which she interpreted as also indicating a desire for her to remain with the company. ( Id. at 299-301.) On March 11, Jacobsen handed in her formal resignation letter. ( Id. at 290.)
Jacobsen asserts that Fein made several comments to her during the transition process that she interpreted as being gender stereotypes. For instance, Fein told her she did not smile during a meeting and that she was blunt and direct. (Fein Dep. 82-83, 85-86.) There has been absolutely no evidence demonstrating that the words used were intended as gender stereotypes.
After Jacobsen submitted her resignation letter, Fein announced on March 13, 2003 that the consulting functions of the Workings Concepts Division would be restructured according to geographic region, one of at least two options discussed during the transition process. ( Id. at 43-45.) A separate infrastructure group would also be a part of the organizational structure. Both divisions reported to Fein. As part of the restructuring, Fein hired Scott McClure for the East Region Manager position originally discussed with Jacobsen. (Fein Dep. 159.) McClure did not oversee the operations of west or central regions, and he did not have financial or payroll responsibility of the Working Concepts Division. (McClure Dep. 53-56, 58-59, 75, 77-79.) Fein remained in the lead position for the Working Concepts Division, devoting half of his time (approximately thirty to thirty-five hours a week) to the responsibilities formerly assigned to McIntyre. (Fein Dep. 63.)
In May of 2004, over a year later, Fein hired Robert Kaunert to take over his duties as Head of the Working Concepts Division, a decision that Fein asserts was made after he felt secure with Towers Perrin's financial investment in the Working Concepts Division. ( Id. at 122, 152-53.)
On June 2, 2003, Jacobsen filed a charge of discrimination with the Maryland Commission on Human Rights. The Commission found no cause to believe Towers Perrin had discriminated against Jacobsen. On November 2, 2005, Jacobsen filed a two-count Complaint in this Court, which was later amended to include five counts. (Paper No. 9.) On April 17, 2006, Towers Perrin answered Count I (Title VII) of Plaintiff's Amended Complaint (Paper No. 16) and filed a Motion to Dismiss with respect to Counts II through V. (Paper No. 17.) By Order dated October 31, 2006, this Court granted in part and denied in part Towers Perrin's Motion. The Motion was granted as to Counts II (Article 49B) and V (intentional infliction of emotional distress), but was denied as to Counts III (breach of contract) and IV (Wage Payment and Collection Statute). (Paper No. 21.)
On May 4, 2007, Towers Perrin filed the pending Motion for Summary Judgment. On May 21, 2007, Jacobsen filed her Response in Opposition (Paper No. 29), in which she voluntarily abandoned pursuing Counts III and IV, leaving only Count I pending before this Court. On June 4, 2007, Towers Perrin filed its Reply. (Paper No. 31.) Also on June 4, 2007, Towers Perrin filed the pending Motion to Strike. (Paper No. 32.) On June 21, 2007, Jacobsen filed her Response in Opposition (Paper No. 33) and, on July 5, 2007, Towers Perrin filed its Reply. (Paper No. 34.)
STANDARD OF REVIEW
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Supreme Court of the United States explained that, in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The opponent, however, must bring forth evidence upon which a reasonable fact finder could rely. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). "Once the movant has established the absence of any genuine issue of material fact, the opposing party has an obligation to present some type of evidence to the court demonstrating the existence of an issue of fact." Pension Ben. Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005) (citing Pine Ridge Coal Co. v. Local 8377, UMW, 187 F.3d 415, 422 (4th Cir. 1999)). Rule 56(e) also requires that "affidavits submitted by the party defending against a summary-judgment motion contain specific facts, admissible in evidence, from an affiant competent to testify, `showing that there is a genuine issue for trial.'" Id. (quoting 10B Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2740, 399 (3d ed. 1998)). The mere existence of a "scintilla" of evidence in support of the nonmoving party's case is not sufficient to preclude an order granting summary judgment. Anderson, 477 U.S. at 252.
This Court has previously held that a "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted). Indeed, this Court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
DISCUSSION
I. Defendant's Motion to Strike (Paper No. 32)
Defendant moves to strike paragraph fifteen of the McIntyre Declaration submitted by Plaintiff. Defendant argues that McIntyre's sworn declaration in paragraph fifteen cannot be considered by this Court in the pending Motion for Summary Judgment because it contains inadmissible hearsay.Rule 56 of the Federal Rules of Civil Procedure states that a "[s]upporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e)(1) (emphasis added); see also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (stating that evidence submitted in opposition to a summary judgment motion must be admissible and based on personal knowledge). The United States Court of Appeals for the Fourth Circuit has specifically held that inadmissible hearsay statements contained in affidavits are not properly considered on a motion for summary judgment. Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir.), cert. denied, 502 U.S. 939 (1991)). This Court has previously applied this rule to determine whether statements contained in a declaration were inadmissible hearsay and thus subject to a motion to strike. Contracts Materials Processing v. Kataleuna GmbH Catalysts, 164 F. Supp. 2d 520, 528-29 (D.Md. 2001).
Paragraph fifteen of McIntyre's Declaration discloses statements allegedly made to him by both MacLaren and Irvine regarding their conversations with Fein. McIntyre states that both MacLaren and Irvine separately told him that Fein indicated that the Head of the Working Concepts Division position was available and that Fein asked each of them if they were interested in the position. The conversations allegedly took place the week of February 3, 2003, well before Plaintiff asked for the position in early March. Defendant contends that such statements are inadmissible hearsay within hearsay and should therefore be stricken.
Hearsay within hearsay, as it is called in Rule 805 of the Federal Rules of Evidence, refers to a hearsay statement that includes within it a further hearsay statement. Such statements are subject to the same evidentiary rules as one-level hearsay statements, and thus "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." Fed.R.Evid. 805.
In response, Plaintiff argues that the statements are admissible at this stage in the litigation for three reasons. First, Plaintiff argues that the statements are not being offered to prove the truth of the matter asserted, i.e. that Fein actually asked whether MacLaren and Irvine were interested in the Head of the Working Concepts Division position. Instead, Plaintiff intends to use paragraph fifteen of McIntyre's Declaration to impeach Fein's deposition testimony, in which he indicated that he immediately assumed the Head of the Working Concepts Division position after McIntyre left Towers Perrin. Defendant has responded that the statements are not admissible for this purpose because Fein's statements were not made under oath. In doing so, Defendant has conflated two distinct ways prior inconsistent statements may be admissible. Nonetheless, the statements at issue here are inadmissable at this state in the litigation for either reason.
Under Rule 801(d)(1)(A), a prior inconsistent statement is admissible as substantive evidence if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Fed.R.Evid. 801(d)(1)(A). McIntyre's statements cannot be considered as substantive evidence under Rule 801(d)(1)(A) in the pending Motion for Summary Judgment, as any previous statements made by Fein to MacLaren or Irvine and then recounted to McIntyre were not made "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Id. Rather, they were mere workplace conversations memorialized by McIntyre in a sworn statement.
Plaintiff, however, argues that the statements should be considered as impeachment evidence, not as substantive evidence under Rule 801(d)(1)(A). Under Rule 613(a), which governs impeachment by prior inconsistent statement, an impeaching attorney may confront a witness during an examination about a prior inconsistent statement. See Behler v. Hanlon, 199 F.R.D. 553, 560 (D.Md. 2001) (describing the process by which prior inconsistent statements are used for impeachment). In this case, Plaintiff cannot use the alleged prior inconsistent statement for impeachment purposes at this stage in the litigation, as Plaintiff is not confronting Fein about statements made in his deposition testimony during an examination. Only if Fein testifies at trial in a manner that warrants impeachment by prior inconsistent statement could Plaintiff offer the statements under Rule 613(a). See Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001) (holding that an affidavit that was found inadmissible as substantive evidence could not be considered for impeachment purposes at the summary judgment stage). Thus, statements made by Fein to MacLaren and Irvine and recounted to McIntyre in paragraph fifteen may not be considered by this Court at this time as substantive evidence under Rule 801(d)(1)(A) or as impeachment testimony under Rule 613(a).
Second, Plaintiff argues that both levels of hearsay — statements by Fein to MacLaren and Irvine, and then statements by MacLaren and Irvine to McIntyre — are admissions of a party opponent under Rule 801(d)(2)(D). Rule 801(d)(2)(D) provides that a statement is not hearsay if made by "the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D). Defendant assumes, as this Court will, that Fein's statements to MacLaren and Irvine during their individual meetings were admissions of Defendant's agent and consequently are admissible as admissions of a party opponent.
Under Rule 805, however, Plaintiff must be able to demonstrate that each level of hearsay is subject to either a recognized exception or the nonhearsay rules contained in Rule 801. Therefore, Rule 805 requires that Plaintiff demonstrate statements made by MacLaren and Irvine are also admissible as admissions of a party. See Parker v. Danzig, 181 F. Supp. 2d 584, 592 (E.D. Va. 2001) (stating that "the proponent for admission must produce independent evidence showing that the scope of the declarant's authority included the matters discussed in the alleged conversations." (citing Precision Piping Instruments, Inc. v. E.I. du Pont de Nemours Co., 951 F.2d 613, 619-20 (4th Cir. 1991))).
Plaintiff has failed to make the necessary showing. Instead, Plaintiff merely recites the standard: "Messrs. Irvine and MacLaren were employees, and thus agents, of [D]efendant at the time they made their statements to Mr. McIntyre, and their statements related to matters within the scope of their employment at the time they were employed." (Pl.'s Opp. Def.'s Mot. Strike 2.) Plaintiff has not produced any evidence even remotely suggesting that MacLaren and Irvine were acting within the scope of their employment when they allegedly passed along the contents of their conversations with Fein to McIntyre. Even if they were acting within the scope of their employment, Plaintiff similarly fails to produce any evidence that they were also authorized by Fein to do so under agency principles. Therefore, paragraph fifteen of McIntyre's Declaration is inadmissible under a two-level analysis of Rule 801(d)(2)(D).
Finally, Plaintiff argues that Fein's statements are admissible as demonstrating his state of mind at the time of the events. Rule 803(3) does not exclude under the hearsay rule any "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)." Fed.R.Evid. 803(3). Plaintiff argues that "[o]ffering jobs to two men show[s] that Mr. Fein's intent and plan was to fill the position of Head of the [Working Concepts] Division, and that it was only after the two men declined the position that he decided not to fill it rather than to give the position to a woman." (Pl.'s Opp. Def.'s Mot. Strike 3.) Assuming for the moment that Plaintiff is correct on this point, she again fails to recognize that Rule 803(3) applies only to Fein's statements to MacLaren and Irvine. Under Rule 805, Plaintiff must also demonstrate that MacLaren's and Irvine's statements to McIntyre fall within a recognized hearsay exception, which she has failed to do.
Therefore, Defendant's Motion to Strike (Paper No. 32) is GRANTED and paragraph fifteen of McIntyre's Declaration will not be considered by this Court in reviewing Defendant's Motion for Summary Judgment. Thus, this Court is prevented from considering McIntyre's statements about what MacLaren and Irvine told him with respect to their conversations with Fein.
Certain portions of MacLaren's deposition relied upon by Plaintiff also consist of inadmissible hearsay. For example, MacLaren testified that "[f]rom what [Irvine] told me, [Fein] offered him the position to run the company." (MacLaren Dep. 37.) Irvine himself has not submitted any sworn statements for either party. MacLaren's testimony on this point is therefore inadmissible because it runs afoul of the same evidentiary problems discussed above in the context of McIntyre's declaration. This Court may not consider evidence at the summary judgment stage that would be inadmissible at trial.
II. Defendant's Motion for Summary Judgment (Paper No. 28)
A plaintiff in a Title VII case may survive a motion for summary judgment filed by the defendant employer in one of two ways: "(1) by offering direct evidence of discrimination under the ordinary standards of proof, or (2) under the system of shifting evidentiary burdens established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Garrow v. Economos Props., Inc., 242 Fed. Appx. 68, 70 (4th Cir. 2007). Because Plaintiff has not alleged any direct evidence of discriminatory intent, her claim is reviewed under the familiar three-step McDonnell Douglas burden-shifting model.
The McDonnell Douglas framework is well established. First, the plaintiff must present enough evidence to prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Second, if the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. In reviewing the defendant's proffered explanation, a federal district court "does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination." DeJarnette v. Corning, Inc., 133 F.3d 293, 298-99 (4th Cir. 1998) (internal quotations and citations omitted).
If the defendant articulates a legitimate, non-discriminatory reason for the adverse employment action, the ultimate burden shifts to the plaintiff to show that the defendant's stated reason is pretextual. McDonnell Douglas, 411 U.S. at 804. This Court may consider the relative strength of the defendant's asserted nondiscriminatory reasons to determine whether the plaintiff has adduced a sufficient quantity of proof. Burns v. AAF-McQuay, Inc., 96 F.3d 728, 732 (4th Cir. 1996). Unsubstantiated allegations and bald assertions by the plaintiff are insufficient to deny a properly submitted motion for summary judgment. Evans, 80 F.3d at 960 (4th Cir. 1996); see also Goldberg v. B. Green Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988) (explaining that the plaintiff's own naked opinions and conclusory allegations are insufficient to withstand summary judgment). If the plaintiff cannot present facts that would permit a reasonable inference that the stated reason is a pretext for discrimination, summary judgment in favor of the defendant should be granted. See Rowe v. Marley Co., 233 F.3d 825, 830 (4th Cir. 2000) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47 (2000)).
In this case, Defendant has argued that summary judgment in its favor is appropriate because Plaintiff has not established a prima facie case by a preponderance of the evidence. Alternatively, Defendant has argued that summary judgment is warranted because it has presented a valid, non-discriminatory reason for Plaintiff's termination that cannot be rebutted by evidence of pretext. The relative strength of Plaintiff's case is weakened significantly after discounting the inadmissible evidence Plaintiff has proffered in support of several key arguments. Thus, after considering the parties' submissions (excluding inadmissible evidence), this Court finds that Plaintiff has failed to establish a prima facie case or meet her ultimate burden under McDonnell Douglas. A. Plaintiff's Prima Facie Case
The parties agree that Plaintiff must meet four elements by a preponderance of the evidence to satisfy her initial burden; namely, that she: (1) is a member of a protected class; (2) sought to be considered for an open position; (3) was qualified for the position; and (4) was rejected under circumstances giving rise to an inference of unlawful discrimination. See, e.g. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). Defendant does not dispute that, as a woman, Plaintiff is entitled to the protections of Title VII. Instead, Defendant argues that Plaintiff has failed to meet the latter three elements of her prima facie case.
1. Existence of an Open Position
There is no dispute between the parties that Plaintiff sought to be named the Head of the Working Concepts Division. Indeed, Plaintiff asked Fein for the position on at least three occasions: first, during the March 3, 2003 meeting; second, during the March 5, 2003 meeting; and third, during a March 6, 2003 telephone call. Thus, the dispute between the parties centers on whether the Head of Working Concepts position was available.
Defendant argues that the position Plaintiff sought was not available because Fein decided to fill the position himself. Towers Perrin, and Fein specifically, had taken a "hands-off" approach with the Working Concepts Division before McIntyre decided to leave. Fein testified that after McIntyre decided to leave, however, he became more involved with the Working Concepts Division's operations and that "the best way to do that was to take on [McIntyre's] role." (Def.'s Mem. Supp. Summ. J. 27.) Fein also testified consistently throughout a lengthy deposition that he did not offer the position to any of the individuals he met with during the week of February 3, 2003, a group that included MacLaren, Irvine, and Jacobsen. On February 17, 2003, Fein sent an email that stated that he would be replacing McIntyre "for the time being."
Fein testified further that, although he did not remember the exact words, he specifically told Jacobsen that he was going to take McIntyre's role at the Working Concepts Division after she first requested the position on March 3, 2003. On March 13, 2003, Fein formally announced the restructured organizational chart, with him remaining responsible for both the consulting and infrastructure departments. Thus, Defendant argues, Fein "had decided by the end of January 2003 that he would be [taking McIntyre's position], had communicated that intention in February 2003, informed Plaintiff he would do so on March 4 and March 6, 2003, and announced that he would do so to the entire Working Concepts Division on March 13, 2003." (Def.'s Reply Mem. 4.) The evidence in this case thus reflects a continuous stream of events all indicating that Fein would take on McIntyre's responsibilities, at least temporarily.
Plaintiff does not dispute, nor can she, that Fein sent an email on February 17, 2003 stating that he was going to take over McIntyre's position "for the time being." Instead, Plaintiff testified that Fein never personally informed her that he would be taking the position — a claim that stands in contrast with the position taken by Fein in his deposition, which was incorporated extensively in Defendant's legal argument.
Plaintiff's testimony, however, is of little probative value because she asks this Court to infer that the job was available from the fact that Fein did not specifically tell her that he was taking the position for the foreseeable future. Plaintiff cannot by herself create a dispute of material fact. This is especially true in this case, where Plaintiff cannot point to any objective evidence that the position was available, such as a job posting or interviews. MacLaren's testimony, in which he stated that he subjectively felt that he would receive a job offer after meeting with Fein, also offers little to establish that there was in fact an open position.
Plaintiff relies solely on subjective testimony to support her argument that Fein was looking for someone to replace McIntyre. Given that Fein's testimony is corroborated by several objective indicia ( e.g. the February 17, 2003 email, the thirty to thirty-five hours a week he spent actually performing McIntyre's former duties, the March 13, 2003 announcement), Plaintiff has not established by a preponderance of the evidence that the position was available when she requested it in early March. Therefore, Plaintiff has not met the second element of the prima facie case.
2. Qualified for the Position
Defendant argues that Fein did not regard Plaintiff as being qualified for the Head of the Working Concepts Division position and therefore Plaintiff cannot meet the third element of her prima facie case. Defendant's argument is based on Fein's testimony, in which he stated that it was his understanding through conversations with employees of the Working Concepts Division that Jacobsen would not be accepted in the lead position and that Fein risked further employee attrition if he chose her for the position. Although Fein testified that he spoke to at least two individuals, Defendant has submitted only the declaration of Libby Valentine. Valentine testified that she told Fein that she "did not believe Jacobsen was suited to lead the division because she did not have the appropriate style of management for the majority of employees in [the] division: [Jacobsen] had a tendency to severely micromanage employees." (Valentine Decl. 3.) This is corroborated by Plaintiff's own testimony, in which she that some employees at the Working Concepts Division did not like her management style. Fein testified further that he didn't feel any employee in the Working Concepts Division was qualified for the lead position.
Plaintiff counters that her "qualifications for the division Head position have never seriously been in doubt in this case." (Pl.'s Mem. Opp. Summ. J. 19.) For instance, McIntyre told Fein that Plaintiff should be given an opportunity to take his position. (McIntyre Dec. ¶ 5.) MacLaren testified that he was "shocked" that Jacobsen was not offered the position because she was the "most qualified" and had the "most experience in the industry." (MacLaren Dep. 16.) Scott McClure testified that Plaintiff was "the most valuable" between her, MacLaren, and Irvine. (McClure Dep. 63-64.) Several co-workers considered her second-in-command behind McIntyre before his departure from Towers Perrin.
The Fourth Circuit has clearly held that co-worker praise is irrelevant in establishing a prima facie case. The considerable co-worker praise proffered by Plaintiff does not create a genuine issue of fact for trial. See, e.g., King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (finding that co-worker testimony was not relevant); Hawkins v. PepsiCo., Inc., 203 F.3d 274, 280 (4th Cir. 2000) (stating that the "alleged opinions of [plaintiff's] co-workers as to the quality of her work are similarly `close to irrelevant'" (citation omitted)); Evans, 80 F.3d at 960-61 ("`It is the perception of the decision maker which is relevant,' not the self-assessment of the plaintiff." (citation omitted)).
In King, the Fourth Circuit recently addressed the probative value of co-worker opinion testimony in the context of the third prima facie element in a discriminatory discharge case; namely, whether the plaintiff was meeting the defendant's legitimate performance expectations at the time of the adverse employment action. In a failure to promote case, the third prima facie element is tweaked slightly to whether the plaintiff was qualified for the promotion. In King, however, the court did not limit its reasoning to discriminatory discharge cases. Rather, the court explained that "we have long rejected the relevance of such testimony [ i.e. co-worker's opinion testimony] and held it to be insufficient to establish the third required element of a prima facie discrimination case." King, 328 F.3d at 149 (emphasis added). The court went on to elaborate that a Title VII plaintiff may demonstrate qualifications sufficient to meet the third element of the prima facie case by offering expert testimony. Id. at 150. Plaintiff has not done so in this case. Therefore, high co-worker praise, such as the testimony offered in this case, is insufficient as opinion testimony to create a genuine issue of gender discrimination for trial.
Plaintiff has likewise been unable to produce any objective evidence demonstrating that Fein's opinion was not held in good faith and did not form the basis of his decision to take McIntyre's position. Plaintiff points to the fact that Fein discussed with her two other positions, the East Region Manager position and Manager of Infrastructure position. This fact does not cast doubt on Fein's opinion that Plaintiff was not qualified for a position superior to those discussed with her. At most, Plaintiff has only established that Fein, as the decisionmaker, carried a different opinion of Plaintiff's qualifications than did a select group of her co-workers, a disagreement insufficient in the Fourth Circuit to establish that Plaintiff was qualified for McIntyre's former position, even if it were available. Therefore, Plaintiff has not demonstrated beyond a preponderance of the evidence that she was qualified for the position.
3. Circumstances Giving Rise to an Inference of Discrimination
Plaintiff argues that the circumstances in this case give rise to an inference of discrimination for several reasons. Plaintiff argues that she was more experienced and could devote more time to the position than Fein. The fourth element of the prima facie case is often met by demonstrating that a less qualified person outside of the protected class was chosen for the promotion. See Obi v. Anne Arundel County, Md, 142 F. Supp. 2d 655, 662 (D. Md. 2001). In this case, however, Fein was both the decisionmaker and the person who took the position. In light of the fact that this Court has determined that Fein, as the decisionmaker, did not consider Plaintiff qualified and that this opinion carried significant weight, it would be quite inconsistent for this Court to now second guess Fein's determination that he himself was qualified to assume McIntyre's job responsibilities. Indeed, Plaintiff has not produced a shred of evidence suggesting that Fein himself took the role simply to prevent Plaintiff, a female, from having it. On the contrary, the evidence demonstrates that Fein did not consider anyone in the Working Concepts Division qualified and felt that, as a principal of Towers Perrin, he should secure the vitality of the Working Concepts Division by taking over for McIntyre.
Plaintiff also makes several other arguments. First, Plaintiff argues that the discussion between Fein and MacLaren raises an inference of discrimination because Fein asked MacLaren about what he would do differently if he were running the division. Second, Plaintiff points to the fact that Fein acted "dismissively" towards Plaintiff by not interviewing her on February 3, 2003. Finally, Plaintiff also notes that Fein called Plaintiff "blunt" and "direct," and that Fein once commented to Plaintiff that she didn't smile enough. If Plaintiff had been able to establish by a preponderance of the evidence that the position she wanted was actually open or that she was qualified for the position, these points may well have been enough to establish an inference of discrimination. Obviously, Plaintiff cannot overcome deficiencies in other elements of her prima facie case by pointing to facts that might satisfy the fourth element. Plaintiff has simply not met the second and third elements, and thus she has not met her prima facie burden.
B. Legitimate Non-Discriminatory Reason for Adverse Employment Action
Defendant has satisfied the second prong of the McDonnell Douglas test by "explaining clearly the nondiscriminatory reasons for its actions." Burdine, 450 U.S. at 260. Plaintiff shoulders the ultimate burden to demonstrate that Defendant's legitimate, nondiscriminatory reason not promoting her were pretextual. Importantly, the ultimate inquiry in a Title VII failure to promote case is not whether Plaintiff should have received the job that she wanted or whether the decision no to promote was unfair or unwise. Such decisions are not the province of federal courts. Instead, the inquiry is whether Plaintiff did not receive the position she wanted because the employer harbored discriminatory animus. The burden to demonstrate pretext has "merg[ed] with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In this case, even if Plaintiff had been able to establish a prima facie case of discrimination, she cannot satisfy her ultimate burden.
Plaintiff argues that this Court should infer that Defendant is covering up unlawful discrimination because it has offered three inconsistent reasons for not promoting Plaintiff: first, Fein told Plaintiff in March 2003 that others wouldn't accept her in a lead role and would leave the company; second, Defendant stated in its Answer that the Head of Working Concepts Position didn't exist anymore; and third, Fein stated in deposition that he did not promote Plaintiff because he himself assumed that role.
In Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639 (4th Cir. 2002), the Fourth Circuit upheld a jury verdict in favor of the plaintiff. The Court found that the plaintiff had established sufficient evidence of pretext, writing that "[t]he fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext." Id. at 647. In Dennis, the decisionmaker testified at deposition that he hired someone other than the plaintiff because of managerial experience, but he testified at trial over a year and a half later that it was both managerial experience and computer knowledge that caused him to hire someone other than the plaintiff. Id. at 646.
Plaintiff argues this case poses far more disparate and conflicting reasons than in Dennis. Plaintiff states that "rather than just adding on a second skill set that plaintiff allegedly lacked [as in Dennis], [D]efendant's justifications here involve different categories of reasons altogether (initial reason given went to suitability for position, second and third reasons went to availability of position)." (Pl.'s Mem. Opp. Summ. J. 24.) The latter two explanations — that Fein was taking the position and that the position didn't exist — are not inconsistent. In fact, the explanations are entirely consistent: the position did not exist because Fein assumed McIntyre's duties. Thus, Plaintiff's argument on this point is a distinction without a difference.
Defendant acknowledges that Fein told Plaintiff that others wouldn't accept her in a lead role and would leave the company. Fein also testified that he told Plaintiff that neither she nor anybody else was going to have McIntyre's position because he was going to take over McIntyre's responsibilities. As discussed earlier, Plaintiff testified that she was never told by Fein that he was going to take McIntyre's position. Taking Plaintiff's testimony for its truth, the fact that Fein did not tell Plaintiff during the interview that he was going to take the position does not "cast doubt" on his explanation. See Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006) ("[P]laintiff cannot seek to expose [an employer's] rationale as pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's validity."). This Court concluded earlier that Plaintiff did not meet the second element of her prima facie case because objective evidence indicated that Fein had told other employees of his intention to take McIntyre's position via email, that Fein was in fact performing McIntyre's functions, and that the restructured organizational chart indicated that he had filled McIntyre's position. Thus, Fein's intent to take over for McIntyre was not, as Plaintiff argues, a post-hoc rationalization first articulated at deposition. Instead, Fein's intent to take over for McIntyre was continuously demonstrated by objective evidence from, at the latest, February 17 until well after Jacobsen requested the position in the beginning of March.
Therefore, Plaintiff has not offered sufficient evidence to permit a reasonable inference that Defendant's stated reason for not promoting her was pretextual and that discriminatory animus was the actual reason for its decision.
Because this Court has found that Defendant's Motion for Summary Judgment should be granted for the above reasons, this Court need not reach other issues addressed by the parties, such as whether Plaintiff availed herself to the internal complaint procedure before bringing suit and whether Plaintiff would have been entitled to back damages.