Opinion
Civ. No. 3:00cv00527.
March 6, 2001.
MEMORANDUM OPINION
This matter is before the Court by consent of the parties ( 28 U.S.C. § 636 (c)) on the Defendant Virginia Commonwealth University's (VCU) motion for summary judgment pursuant to Fed.R.Civ.P. 56 as to Counts I (disparate treatment in violation of Title VII of the Civil Rights Act of 1964), Count II (constructive discharge), Count IV (violation of Family Medical Leave Act (FMLA)), and Count V (retaliation for FMLA claim) as well as a demand for fees and costs. Additional allegations in the Motion for Judgment (Mot. J.) that was removed to this Court from state court pursuant to 28 U.S.C. § 1441 (b), including those against additional Defendants (the Medical College of Virginia and MCV Physicians), have been dismissed with prejudice by agreement. (Order, Jan. 11, 2001). For the reasons stated herein, the Defendant's motion for summary judgment on the claims against it as the sole remaining defendant is GRANTED and the action is therefore DISMISSED. The Defendant's related motion for fees and costs is DENIED.
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to withstand the granting of relief. See e.g., Briscoe v. Lahue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd., 460 U.S. 325 (1983);Breeden v. Richmond Community College, 171 F. R. D. 189, 195 (M.D.N.C. 1997); Hurdle v. Department of Environmental Quality, Case No. 3:00CV336 at 15 (E. D. Va., Jan. 5, 200 1) (J. Payne)(unpublished).
Undisputed Material Facts and Justifiable Inferences
The Court deems the following to be the relevant factual assertions and inferences on which the resolution of the pending motion must be based:
1. The Plaintiff, Olivia Kistler (Plaintiff or Kistler), an adult female, was initially hired by the Department of Psychiatry of VCU (the Department) in January of 1993 on a temporary basis in a clerical position as secretary to the Administrator of the Department, John Blatecky (Blatecky). (Mot. J. ¶¶ 7-8; Def.'s Mem. of Law in Supp. of Mot. for Summ. J. (Def.'s Mem.), Encl. II (Blatecky Aff.) ¶ 5);
2. The Plaintiff was thereafter hired on a permanent basis and promoted based on favorable performance evaluations until she attained the non-faculty, i.e., classified, position of Fiscal Manager of the Department. (Mot. J. ¶¶ 4-8; Def.'s Mem., Encl. I (Kistler Dep. 11/7/00 (Kistler Dep.) at 38, 86-87); (Blatecky Aff. ¶¶ 5, 7-8);
3. The Plaintiff was offered another employment opportunity with a substantial pay increase in a different VCU department in 1996 and she was persuaded to forego the opportunity (and other employment opportunities that became available) by the promise, initiated by Blatecky, that the Department would subsidize her pursuit of a graduate degree at VCU and promote her to a faculty-level position in the Department with commensurate benefits. (Mot. J. ¶¶ 10-11; Pl.'s Mem. in Opp. to Def.'s Mot. for Summ. J. (Pl.'s Mem.), Ex. C (Kistler Dep. I) at 24-26; Ex. E (Blatecky Dep. 11/20/00) (Blatecky Dep.) at 108; Ex. F; Blatecky Aff. ¶ 10);
4. The Plaintiff commenced and pursued the graduate program as planned, but without the full financial support of the Department as she had been told would be provided, the explanation being that budgetary considerations ultimately precluded such assistance. (Mot. J. ¶ 13; Blatecky Aff. ¶ 14);
5. The Defendant allowed the Plaintiff to dedicate a portion of her work week (eight hours per week) to her educational pursuits, allotted additional time considerations (one week per semester of paid leave and use of accumulated compensatory time for educational purposes) and made an offer to pay the initial costs of books for the graduate program ($300.00) in addition to the tuition waivers available to other VCU employees generally. (Kistler Dep. at 29, 98-99; Blatecky Aff. ¶ 14);
6. Blatecky asked Plaintiff to write the required job description for the creation of a faculty-level administrative position after Plaintiff had declined the higher-paying employment opportunity and after she had commenced her graduate studies. (Mot. J. ¶ 20; Blatecky Aff. ¶ 10; Kistler Dep. at 37; Kistler Dep. 12/20/00 (Kistler Dep. II) at 65-66);
7. The proposal to create a new position for the Plaintiff was approved by the Chairman of the Department (Silverman). (Blatecky Aff. ¶ 11);
8. The Department was put on notice in the same general timeframe that its operating budget could be significantly reduced, an event which was eventually avoided, at least to the extent initially anticipated. (Mot. J. ¶ 27; Blatecky Aff. ¶ 13; Blatecky Suppl. Aff. ¶ 4);
9. The Plaintiff inquired whether budgetary concerns which were known at the time would impact the creation of the new position and she was assured by Blatecky and others that they would not. (Kistler Suppl. Aff. ¶ 2);
10. The Plaintiff had various conversations with Blatecky during the same period and told him in one such discussion that her goal was to attain a position on a level equal to his. (Kistler Suppl. Aff. ¶ 3);
11. The relationship between Plaintiff and Blatecky began to deteriorate during this same period. (Blatecky Aff. ¶ 13, 16; Def.'s Mem., Ex. F; Pl. Mem. in Resp., Ex. D (Blatecky Dep.) at 190-192);
12. Blatecky delayed processing the proposal to create Plaintiff's new position. (Blatecky Aff. ¶ 13; Blatecky Dep. at 116, 140; Kistler Dep. at 43);
13. The Plaintiff met with the Vice Chairman of the Department (Cohen) after the conversation with Blatecky in which she sensed he resented her ambition to attain an equal position and was told by Cohen that Blatecky felt threatened by her excellent reputation. (PI.'s Mem., Ex. C (Kistler Dep. I) at 34-36; Ex. G ¶ 6);
14. During the same period, the Plaintiff developed medical problems and Blatecky complained that Kistler's work product was deteriorating. (Def.'s Mem., Ex. F);
15. The Plaintiff explained that any decrease in her performance perceived by Blatecky was due to the increased demands of her position as affected by the demands of her educational pursuits and her worsening physical health. (Mot. J. ¶ 26; Def.'s Mem. Ex. I; Blatecky Dep. at 153-154);
16. Blatecky eventually informed the Plaintiff in a meeting on October 31, 1997, after she repeatedly inquired about the status of the position, that he had changed his mind, with Silverman's concurrence, and was not going to forward the proposal to create the new position for the Plaintiff for approval by VCU administration because of budgetary considerations and his dissatisfaction with the Plaintiffs work product, including a frustration over having to constantly deal with her health issues. (Mot. J. ¶ 27; Kistler Dep. I at 43-45; Kistler Dep. II at 83-84; Def.'s Mem., Ex. F);
17. During the sequence of events, but before he decided not to forward for final approval the proposal for the creation of the new position for the Plaintiff, Blatecky was advised that VCU administrative policy prohibited the action, at least as proposed, but he did not tell Plaintiff at the time that the policy was a factor in the decision to withdraw the proposal. (Blatecky Aff. ¶ 12; Pl.'s Mem., Ex. G ¶ 4; Kistler Dep. II at 63-64);
18. The Plaintiff expressed to Blatecky and others at the time that she was dissatisfied about the withdrawal of the financial assistance for her graduate studies and the denial of the promised promotion, stating her belief that the promises on which she had relied had been arbitrarily and unfairly broken and that certain male co-employees had been given greater consideration and benefits. (Blatecky Aff. ¶ 16; Pl.'s Mem., Ex. G ¶¶ 4-5, Ex. H (Silverman Dep.) at 79; Def. VCU's Reply to Pl.'s Resp. to Mot. for Summ. J. (Def. VCU's Reply to Pl.'s Resp.) Levenson Dep. at 60-61);
19. The Plaintiff became confrontational with Blatecky, berating him directly and to others as being deceitful, incompetent, etc. (Blatecky Aff. ¶ 16; Def.'s Mem., Exs. G, H, I);
20. The male co-employees (Mattocks and Saltzberg) identified by the Plaintiff either received only the tuition waiver benefit (Saltzberg) from the University (not the Department) available to VCU employees generally or a tuition subsidy from the Department (Mattocks) because his educational program was not offered at VCU (therefore it was not subject to the tuition waiver grant) and he was also required to write a grant for the benefit of the Department. (Blatecky Aff. ¶ 15; Blatecky Suppl. Aff. ¶ 1, Ex. A (Saltzberg Aff.); Def.'s Reply to Pl.'s Suppl. Mem. of Law (Def.'s Reply to Pl.'s Suppl. Mem), End. XIV (Saltzberg Suppl. Aff.);
21. Other female employees of the Department allege that they were subjected to discriminatory acts related to salary, promotion and sexist atmosphere, e.g., what the Court views as allegations of at least rude, crude and boorish behavior. (Kistler Suppl. Aff. ¶¶ 7-11; Pl.'s Mem., Ex. G ¶¶ 7-11);
22. Blatecky attempted to terminate the Plaintiff's employment by asking her to resign for having "badmouthed the Department," but he was told by Silverman and others he did not have the authority to do so. (Kistler Suppl. Aff. ¶ 6; Kistler Dep. II at 84);
23. The Plaintiff notified VCU by telephone on or about January 30, 1998, that she would be absent because of a "life threatening medical condition" and she provided a short note from a physician that only stated that Plaintiff was under his care and was suffering from a medical problem that could result in absence from work. (Blatecky Aff. ¶ 18, Exs. J, K);
24. The Department (Blatecky) responded to Plaintiff's request for FMLA relief and requested medical substantiation of her condition, offering to utilize a third party outside the Department for review purposes in order to preserve requested confidentiality. (Id. Ex. N);
25. Plaintiff declined to provide anymore information about her medical condition because she did not believe the material would be considered on a confidential basis and because she felt she had been a victim of discrimination. (Id. Ex O);
26. The Department responded to the Plaintiff's expressed concerns and renewed its request for substantiation/certification of the Plaintiff's medical condition. (Id., Ex. P.
27. The Department terminated the Plaintiff's employment upon receipt of her resignation which she tendered several days before the deadline designated by the Department consistent with FMLA requirements for her to provide the requested medical information. (Id., Ex. Q); ¶ and
28. Blatecky was preparing to terminate the Plaintiff when she submitted her resignation but the decision was never communicated to her. (Blatecky Dep. at 32).
The Plaintiff was initially hired as a grade 5 classified Office Service Specialist and she was thereafter promoted to a grade 8 as a Fiscal Manager. An employee is either "classified," "faculty" (administrative or regular faculty) or "hourly" and a faculty classification can include a clinical, teaching, administrative or combination position consisting of more than one function. (Def.'s Mem. at 3; Def.'s Suppl. Mem. in Supp. of Mot. for Summ. J. (Def.'s Suppl. Mem.), End. VII (Blatecky Suppl. Aff.) ¶ 2).
The Plaintiff contends that no reduction ultimately resulted, but her conclusionary suppositions are insufficient to create a genuine dispute of material fact, especially in the face of the substantiated assertions of the Defendant. (Pl.'s Mem. in Resp. and Opp. to Def.'s Suppl. Mem. in Supp. of Def.'s Mot. for Summ. J. (Pl.'s Mem. in Resp.), Ex. A (Kistler Second Suppl. Aff.)¶ 3).
Dr. Cohen does not recall the specifics of the conversation, but he also does not deny that something may have been discussed to the effect of Blatecky feeling threatened by Kistler's work ethic and ability. (Pl.'s Mem., Ex. I (Cohen Dep. at 27-28)). The Court therefore accepts the allegation as true for purposes of the motion.
But see Plaintiff's apparent self-contradiction that she was never told by Blatecky that funding was a reason for her not being given the position. (Kistler Dep. II at 88). Though puzzling, the Court concludes that the issue does not require resolution to decide the instant motion.
Blatecky denies he asked the Plaintiff to resign as opposed to only suggesting she may resign on her own accord. However, Silverman and Cohen (as well as Plaintiff) assert he told them he had asked for her resignation. The Court therefore construes the Plaintiffs allegation at this juncture as true. (Blatecky Aff. Ex. F; Pl.'s Mem., Ex. H (Silverman Dep. at 78); Ex. I (Cohen Dep. at 32); Kistler Dep. at 65).
The Plaintiff submitted various affidavits and related arguments contesting whether the Defendant treated the Plaintiff in a different manner with regard to her medical leave issue than others so as to establish a retaliation claim, but the majority of it was submitted after the Court ruled on the matter at the conclusion of oral argument and all of the submissions are too conclusionary in any event without substantiation to merit consideration, especially in light of the Defendant's substantiated position. (Blatecky Aff. ¶¶ 17-20; Exs. J-Q).
ANALYSIS Gender Discrimination
The requirements for maintaining an action under Title VII for gender discrimination in an employment context based on circumstantial evidence are well-established. Generally, a plaintiff must make a prima facie showing that he or she was a member of a protected class; suffered an adverse employment action (such as the denial of a benefit), that he or she was performing at an acceptable level, and that the adverse action occurred under circumstances that give rise to an inference of unlawful discrimination (such as a similarly-situated individual outside the class receiving the benefit). St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Such an offer of proof must be made before the burden of production "shifts" to the defendant to offer a nondiscriminatory explanation for the action which may be rebutted by the plaintiff as merely "pretextual." Id.The Plaintiff's basic position is that she was entitled to an employment benefit (financial assistance and a promised promotion) and that she was denied the benefit while similarly-situated male counterparts were granted such benefits without gender-neutral justification so as to establish at least a prima facie case of illegal discrimination. The Plaintiff also alleges that an analysis of the situation must take into account the circumstances of what is commonly known as a "glass ceiling" setting (females being promoted, but only up to a certain level) and discriminatory atmosphere in which females received less income and were routinely subjected to derogatory and demeaning behavior.
The Plaintiff alternatively argues that comments and behavior attributed to the Chairman of the Department (Silverman) in the context of a "glass ceiling" environment regarding females is direct evidence of gender discrimination so as to eliminate the necessity of establishing a prima facie case. (Pl.'s Suppl. Mem. at 12). However, evidence relied upon by the Plaintiff such as comments comparing Plaintiffs limited income to "pin money" so as to suggest an inferior, subservient position are not of the level or to the degree as found to have constituted direct evidence in such cases as Haynes v. W. C. Cave Co., 52 F.3d 928 (11th Cir. 1995), cited by the Plaintiff. Furthermore, even if there is evidence of a pattern and practice establishing a "glass ceiling" scenario, such evidence cannot alone, under the present law of this circuit, constitute direct evidence of discrimination for purposes of establishing a prima facie case. See Lowery v. Circuit City Stores, Inc. 158 F.3d 742, 759 (4th Cir. 1998), cert. granted and vacated by 527 U.S. 1031 (1999), remanded to 206 F.3d 431, cert. denied, ___ U.S. ___, 121 S.Ct. 66 (2000). See discussion, infra at 14-15.
VCU defends on the combined basis that the Plaintiff has failed to establish even a prima facie case because she cannot prove that she was entitled as a matter of right to the offer of tuition assistance and promotion and, even if the situation be viewed as one in which she can be considered to have become entitled to it because she relied on the offers to her detriment, she cannot demonstrate that there were similarly-situated male counterparts who were afforded the same benefit. Furthermore, the Defendant asserts that even if it is determined that the Plaintiff has established a prima facie case, she cannot, as a matter of law, refute the indisputable, non-discriminatory explanation given for the adverse action so as to still result in the granting of summary judgment relief.
As a consequence, the Defendant asserts that the Supreme Court's recent decision of Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), is not implicated.
An adverse employment practice is defined in Title VII as "failing or refusing to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). Furthermore, the alleged adverse employment action must have been "ultimate" and "tangible" in nature, constituting a "significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
As a classified employee, the Plaintiff did not have an existing right as such to the creation of a faculty-level position. There is unrebutted evidence that no classified employee had ever been given such a benefit and the distinction between the two levels of employment (classified and faculty) is clearly substantive (contrary to Plaintiffs purely conclusionary assertions) so as to justify the policy of creating positions for the one category and not the other. (Blatecky Supp. Aff. ¶ 2, Ex. B; Def.'s Reply to Pl.'s Suppl. Mem. of Law, End. XII (Second Suppl. Blatecky Aff.) ¶¶ 1-2). Furthermore, as emphasized by the Defendant and as substantiated in the existing record, faculty positions that had been "created" for certain employees were independently funded in contrast to the proposed slot for the Plaintiff that would have to be financed from existing or otherwise authorized funds. (Def.'s Reply to Pl.'s Suppl. Mem., Ex. D).
Again, the Plaintiff attempts in a self-serving conclusionary affidavit to create a genuine issue of disputed material fact by saying that she has personal knowledge and experience that the proposed position would have been funded from an outside source, namely, VCU funds. (Pl.'s Mem. in Resp., Ex. A (Kistler Aff. ¶ 3)). Aside from whether such a source would have constituted independent funding as obviously meant by the Defendant, the Plaintiffs submission is conclusionary and otherwise lacks sufficient basis for reliability. Pl.'s Mem., Ex. E (Blatecky Dep. at 140); Ex. 7).
The Plaintiff asserts that she was entitled to the tuition assistance she had been promised beyond that which the Department ultimately provided in addition to the tuition waiver benefit afforded all eligible VCU employees, including the Plaintiff. The Plaintiff argues that she was entitled to such an additional benefit because certain identified male employees of the Department were granted greater education benefits and it doesn't matter whether they occupied faculty level positions; rather, it was the fact that the benefit was awarded under circumstances that at least suggest discrimination. Again, however, the Plaintiff cannot point to any other classified employee, male or female, whoever received such a benefit from the Department. That fact alone, especially when viewed in the context of the basic distinctions between the two levels of employment, leads to the conclusion that the Plaintiff was not entitled to any of the benefits she seeks. The evidence does not otherwise disclose sufficient circumstances under which the conclusion can be reached that the male comparators relied on by the Plaintiff received the same or comparable benefit as the product of gender discrimination.
The Department did grant the Plaintiff some additional benefits for her educational pursuits. (Kistler Dep. at 29, 98-99; Blatecky Aff. ¶ 14)).
Although conceptually it should not always be necessary to analyze such an employment scenario as this one with reference to comparators because none may exist, the Plaintiff has based her prima facie showing on the existence of such a circumstance. However, the situations involving the two male comparators cited are clearly distinguishable for several reasons and therefore they are not similarly-situated as required for comparison purposes. Powell v. City of Norfolk, 1998 U.S. Dist. LEXIS 15915 (E.D. Va., Aug. 17, 1998), aff'd without op. 181 F.3d 90 (4th Cir. 1999) (unpublished) (citing cases). See also Mack v. Great Atlantic Pacific Tea Co., Inc., 871 F.2d 179, 182 (1st Cir. 1989); Meyers v. Ford Motor Co., 659 F.2d 91, 93-94 (8th Cir. 1981).
The Plaintiff, relying on Haynes v. W. C. Caye Co., 52 F.3d 928, argues that no comparators are necessary to establish a prima facie case. There is no supporting precedent in this circuit for the proposition and the Haynes case is clearly distinguishable for a number of reasons, including evidence in Haynes of direct gender discrimination and the fact that the plaintiff was first elevated to the subject position and then removed for the stated reason that a male would be preferred.
Under the law as it currently stands, a Plaintiff must still point to comparators who are similar in all relevant respects. Powell v. City of Norfolk, 1998 LEXIS 15915, at *10 (relying on Holifield v. Reno, 115 F.3d 1555, 1562 (llth Cir. 1994)). Although the Fourth Circuit does not have a binding case on point, "[o]ther courts have required similarity in such factors as standards of performance, the supervisor to whom the employees report, the type of conduct in which the employees engaged, and an absence of mitigating circumstances to distinguish that conduct." Id. at 11 (citing to other courts). It is Plaintiff's burden to come forward with such evidence that shows Saltzberg and Mattocks were her comparators based on facts specific to this case. She has not and cannot do so.
The facts in Powell v. City of Norfolk required the analysis to focus on very case specific details which are not present in this case. Powell, an African-American, was a Norfolk police officer "moonlighting" as a stock clerk who shot and wounded a fleeing shoplifting suspect. Powell was convicted of unlawful wounding, a felony, and terminated from the police force. Later, Powell's conviction was set aside but he was not reinstated to the force. The Court's analysis focused on whether Powell could show that other Caucasian officers were reinstated after being charged with similar misconduct, not whether other officers had the same education, duties, experience, and other like circumstances. See generally 1998 LEXIS 15915, at **2, 11.
In the one instance, the individual (Saltzberg) was not given any greater benefit than that provided by the University-wide tuition waiver program. The Plaintiff's self-serving conclusionary allegations that she knows otherwise because she issued Departmental checks are woefully insufficient to create a genuine dispute of material fact. (Blatecky Suppl. Aff, Ex. A). In the second case (Mattocks), the faculty member was given greater financial assistance, but because he was not eligible for the tuition waiver benefit where his program of study was not offered at VCU. (Blatecky Aff. ¶ 15; Blatecky Suppl. Aff. ¶ 1). He was also required to undertake a grant proposal that would be to the benefit of the Department as part of his educational pursuits which can be viewed as partial consideration for the financial assistance provided and thereby a distinguishing feature. Id.
Plaintiff asserts that she is unable to substantiate her position because necessary records were destroyed by the Defendant. (Pl.'s Mem. in Resp. at 1-2). However, it appears that any such records were destroyed in the normal cause of business and the result is still the same, namely, Plaintiff's assertions are merely conclusionary and are otherwise conclusively rebutted by the specific and substantiated evidence tendered by the Defendant. (Second Suppl. Blatecky Aff. ¶¶ 5-6, Ex. D; Blatecky Suppl. Aff. ¶ 1, Ex. A (Saltzberg Aff.); Def's Reply to Pl.'s Suppl. Mem., End. XIII (Saltzberg Suppl. Aff.), Encl. XIV (Fife Aff.)).
Although Kistler had a bachelor's degree when she embarked on the master's program, Saltzberg had a master's degree and Ph.D., and had both administrative and clinical duties as the primary therapist of planned outpatient care at a satellite program. (Def.'s Supp. Mem., Ex. A (Saltzberg Aff. ¶¶ 1, 2)). Both pursued a master's degree in health administration which would ostensibly be related to the performance of both of their jobs in the Department. More to the point, however, the comparison is obviated by Saltzberg's sworn statements that he received no more than the tuition waiver that all university employees were entitled to receive. Id. Despite Plaintiffs memory of checks she may have processed to Saltzberg, this sworn statement overcomes her perception, a statement that is further corroborated by a second source. (Fife Aff.). As to Mr. Mattocks, whatever support he may have received in lieu of a tuition waiver cannot be fairly compared to Plaintiffs claim of entitlement to financial support from the Department over and above that to which she would be normally entitled as a VCU employee. These are three employees with distinctly different backgrounds, education, specialities, and roles within the Department. Taken together with the circumstances under which each was pursuing his or her advanced degree, they cannot be deemed comparators for purposes of proving a gender discrimination claim.
The Plaintiff was promised a faculty position and she declined other employment because of the promise. However, Plaintiff can point to no one who was a comparator who enjoyed such a promotion from a classified administrative level — be it clerical, management or otherwise — to a faculty level. The Plaintiff argues that other faculty positions were created on numerous occasions (Pl.'s Mem. at 7) and that all others who were offered specially-created faculty positions are her comparators, including even Blatecky because she eventually assumed many of the duties he had been performing. The Court accepts as true for purposes of resolving the pending motion all of Plaintiffs assertions about her duties and importance to the Department, including the fact that in order to retain her they promised a specially-designed faculty-level position just for her. That alone, however, is insufficient as a matter of law to prove that all persons appointed to specially — designed faculty-level positions are her comparators.
Plaintiff specifically names Dr. Singh, promoted from Assistant Director to Professor and Director of the Commonwealth Institute in 1989; Susan Godley in the School of Social Work; Dr. Jane Carlson from Assistant Director to Director of the Autism Center Education Program; Dave Mattocks as Director of Marketing; Dr. Wiley at the Treatment Center; Janet Hill as Research Administrator; John Blatecky as Department Administrator; Michael Neal, Carol Prescott and Patrick Sullivan as non-clinician researchers; Dr. Bob Cohen as Director of the Virginia Center for Children. (Pl.'s Mem. at 7). The Court has also examined spreadsheets entitled "Department of Psychiatry New Faculty Positions" attached as Ex. F to Pl.'s Supp. Mem. and Exs. D and A to Def.'s Supp. Mem. The documents reveal that most of the faculty positions that were created from 1988 to 1999 were for individuals who had advanced degrees as either Ph.D.s or M.D.s. Approximately 62 new faculty positions were added between 1988 and 1999. Of those, as many as 27 held the degree of Ph.D. D.Ed or Psy.D.; at least 19 were M.D.s; 5 had master's degrees; and the remaining hires had specialized licenses or certifications such as LCSW or CNS. The Department of Psychiatry is obviously a provider of psychiatric and medical care in a teaching hospital setting. It necessarily needs employees of such education and background to deliver services and to teach. However, it also needs qualified employees to run the day-to-day business of the Department, as did Plaintiff in her role as Fiscal Manager. This does not diminish such an employee's importance, but at the same time, it does not elevate it either.
Although Plaintiff can name all of the employees who were appointed to administrative faculty positions from 1988 through 1999, these individuals are more like "hypothetical comparators" since she can point to no one in an unprotected class who was given the faculty position she coveted. Houck v. Virginia Polytechnic Inst., 10 F.3d 204 (4th Cir. 1993). Even if the Plaintiff would succeed in convincing the Court that she was entitled to the promised faculty-level position, she still cannot prove that it was denied her based on the promotion of a similarly-situated male employee or any other circumstance that gives rise to an inference of unlawful gender discrimination so as to withstand summary judgment.
Compare to cases brought under the Equal Pay Act, Houck v. Virginia Polytechnic Inst., 10 F.3d at 204 (holding that a female Plaintiff must show actual male comparators, not hypothetical comparators, to sustain a prima facie case under the Equal Pay Act);Tornow v. Univ. of North Carolina at Chapel Hill, 1997 WL 237282, at * 3 (4th Cir. Sept. 25, 1992)(unpublished) (where there were actual male comparators, the University applied its "pay plan" in a gender-neutral manner even though a department practice of requiring female, but not male, employees to clean the kitchen was suspect employment action, it did not impact salary decisions); or under 42 U.S.C. § 1981, Edwards v. Newport News Shipbuilding Dry Dock Co., 1998 WL 841567, at *2 (45th Cir. Dec. 7, 1998) (citing Stephens v. South Atl. Canners, Inc., 848 F.2d 484, 489 (4th Cir. 1988), with respect to wrongful discharge, the prima facie elements in § 1981 cases are the same as in Title VII cases where a Plaintiff must show a comparator of the unprotected class engaged in the same conduct but was not discharged).
The only other circumstances on which the Plaintiff relies concern the allegations that there was a "glass ceiling" situation within the Department with no females in supervisory roles and that the atmosphere was generally sexist with discriminatory circumstances existing that ranged from salary issues to verbal harassment. A plaintiff may rely on evidence of a pattern and practice of discrimination in the workplace that "gives rise to an inference of unlawful discrimination." Lowery v. Circuit City Stores, Inc., 158 F.3d at 759 (individual plaintiffs in decertified class action could not sustain Title VII and § 1981 claims with pattern and practice evidence, but the EEOC could find systemic discrimination based on such evidence). Although evidence of pattern and practice may assist in proving a prima facie case of individual gender discrimination, it cannot supplant the necessity of establishing a prima facie showing that an individual was a victim of such a discriminatory pattern. Id. at 760-761 (limiting the application of Teamsters v. United States, 431 U.S. 324 (1977)).
Lowery v. Circuit City Stores was decided before the Supreme Court's Decision in Reeves v. Sanderson Plumbing Products, Inc., It is the opinion of this Court that some of Lowery's analysis of the standard for proving pretext is abrogated by Reeves. However, because Plaintiff in this case cannot establish a prima facie case, it is unnecessary to invoke that analysis.
In this case, the Plaintiff makes a strong argument supported by affidavits and employment records that even women with more education, experience, and responsibility than Plaintiff experienced disparate salary and professional treatment over time in the Department. (Pl.'s Supp. Mem. at 6-12 (with attachments)). The Defendant argues that pattern and practice evidence generally is unavailing to the Plaintiff because "statistics alone cannot establish a prima facie case of individual disparate treatment, all four elements of a prima facie case must be established." (Def.'s Reply to Pl.'s Suppl. Mem. of Law at 9) (citingLowery v. Circuit City Stores, Inc., 158 F.3d at 761). The Defendant also responds to the Plaintiffs specific allegations with affidavits and records asserting the opposite. (Def.'s Supp. Mem.) (with attachments). Even though the contested allegation of a "glass ceiling" environment would necessarily require resolution by the factfinder and preclude summary judgment relief, the issue is not even reached in this instance because the Plaintiff has failed in her burden of demonstrating that "true" comparators received more favorable treatment under circumstances sufficient to meet the threshold requirement of a prima facie case.
Although it is not necessary to address the additional argument that summary judgment must nevertheless be granted because the Plaintiff is unable to rebut the Defendant's explanation(s) of why the subject action was taken, one further observation is appropriate. The Defendant asserts that there is no question but that the adverse employment actions were taken against the Plaintiff for legitimate non-discriminatory reasons based on budgetary constraints and administrative procedure. However, even though the Court finds as a matter of law that no retaliatory action was taken in response to the Plaintiff pursuing her rights under the FMLA because she failed to comply with even the minimum standards for leave under VCU policies and the Act (see discussion, infra pp. 19-21), there is a genuine dispute as to whether budgetary concerns and/or administrative policies were the true rationale for the action taken. This is so because the former was known, at least to some extent, when the offer of the faculty promotion was initially extended and the latter was not communicated to the Plaintiff at an appropriate juncture when Blatecky gave her other reasons for withdrawing the position. Moreover, the Defendant's own evidence clearly confirms that Blatecky's position, for which an exception was obtained, was more than three administrative reporting levels below the Dean which appears to effectively rebut the Defendant's assertion that the promised promotion was withdrawn because it could not be created. (Def.'s Reply to Pl.'s Suppl. Mem. at 3-5) Such contested allegations and related factual assertions create genuine disputes, but they are nevertheless not material to establishing the Plaintiffs prima facie case. At most, their resolution would be relevant and material to the believability of the Defendant's offer of a legitimate non-discriminatory reason for the refusal to promote the Plaintiff. However, the point in the process for resolution of those questions need not be reached.
Which also has relevance to the Defendant's demand for fees and costs.
The administrative policy that no faculty-level position could be created that was more than three levels below that of President of the University.
Aside from the Plaintiff's related assertion that the proposed position as his assistant would be at the same level as Blatecky anyway and not counted as an additional step. (Pl. Supp. Aff., Kistler Dep. Vol II at 65).
Blatecky did not even attempt to pursue an exception to the rule (as had presumably been done for his position) of the Secretary of Education as permitted in the Consolidated Salary Authorization for Faculty Positions in Institutions of Higher Education 1996-97 (Def.'s Mem., Ex. A). The ultimate issue of whether the Plaintiff could prove the Defendant's explanation to be merely pretextual would clearly be for the factfinder to resolve, but only if the issue were to be reached.
Although the analysis of this Court in Keegan v. Dalton is instructive, it is not dispositive. 899 F. Supp. 1503 (E.D. Va. 1995). It is instructive because the Court's ultimate conclusion was, as here, that the situation involved, at most, failed employee expectations. Id. at 1515. However, the facts in the two cases are distinguishable and the Court's resolution in Keegan emphasized more than the evidence permits here that the plaintiff in Keegan failed to establish a prima facie case of entitlement to the subject benefit for which she had to be found to be qualified in order to prevail in her claim.
The portion of the Keegan decision which analyzes the hypothetical result if the Plaintiff were to meet her prima facie case (she would lose anyway because she could not rebut the non-discriminatory reason for the adverse employment action) is no longer good law since the decision inReeves makes it clear that once Plaintiff has offered evidence of pretext, then it is a question for a trier of fact to resolve and if the factfinder does not believe such evidence, it can be considered as evidence of the basic claim. As significant as the Reeves precedent is on Title VII jurisprudence, it does not eliminate the necessity for establishing a prima facie case. See 530 U.S. at 138, 120 S.Ct. at 2109 (explaining that once the prima facie case is proven, unless there is "abundant and uncontroverted independent evidence that no discrimination occurred," it is up to the factfinder to determine whether the offered non-discriminatory reason was pretextual.).
In Keegan, the Court held that the Defendant offered "ample evidence that Keegan did not qualify for long-term training. She failed to make persuasive presentations of her curriculum, she failed to enroll in a doctoral program, and the degree she hoped to pursue was not one of use to NUSC." 899 F. Supp. at 1513. Keegan argued she was entitled to long-term training simply because, like all agency employees, she was entitled to apply. Id. These facts are distinguishable from Kistler's facts. First of all, with respect to Kistler's master's program, she was encouraged by the Department to apply because it would enhance her value to the Department. Kistler was accepted into the program and began working on it. On the other hand, Keegan was never promised the ongoing training or fellowship, she never applied for a doctoral program, and the program she proposed was unrelated to the work she did for the Navy. In this case, Kistler was promised additional funding for education and therefore decided to forego other employment opportunities based on the Department's promise she would be compensated by pursuing her education and receiving promotion at a faculty level position to reflect her duties in the Department. In Keegan, the plaintiff was simply eligible to compete with others for the benefit and she did not meet minimum requirements to begin the program. Nonetheless, in Keegan, the EEO investigator determined that the plaintiff had satisfied her prima facie case. The Court disagreed based on the reasoning that "though one may apply to medical school, for example, it does not follow that one has a right to be accepted." Keegan v. Dalton, 899 F. Supp. at 1513.
FMLA
To be eligible for leave under the EMLA, an employee is required to provide sufficient certification by a health care provider in a timely manner. 29 U.S.C. § 26 13(a). In this case, the Plaintiff relies on a two-line note from her doctor that only stated that she was suffering from an unidentified illness that could require absences from work. See Undisputed Material Facts and Justifiable Inferences, supra ¶¶ 23-26. Under the statute, certification regarding the illness of an employee is sufficient if it states
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; . . .
(4)(B) for purposes of leave under section 2612(a) (1)(D) of this title, a statement that the employee is unable to perform the functions of the position of the employee;
29 U.S.C. § 26 13(b).
The Defendant asked for nothing outside the scope of what is authorized by the FMLA, offered to address Plaintiffs confidentiality concerns, and yet Plaintiff failed to meet the basic standard for sufficient certification under the Act.
The Plaintiff argues alternatively that the Defendant engaged in acts prohibited by the FMLA in order to deprive her of her FMLA rights. 29 U.S.C. § 2615. True, the Act creates a cause of action where an employer has interfered with an employee's exercise of rights, but in this case the Defandant did not interfere with Plaintiff's rights by simply asking her to fulfill the required certification of having a serious health condition. It is also correct that the FMLA makes it unlawful to discharge or discriminate against an employee for opposing any practice made unlawful under the Act, but here too Plaintiff fails because the acts in which the Defendant engaged — requesting certification — are specifically authorized under the Act. Finally, there is no evidence that the Defendant interfered with any proceeding or inquiry pursuant to the FMLA. In fact, Plaintiffs claim ultimately rests and is resolved on her unwillingness to comply with the requirements of the FMLA for which the Defendant cannot be found liable as a matter of law.
Constructive Discharge and Retaliation
In addition to her disparate treatment claims, Plaintiff also alleges she was constructively discharged and that she suffered retaliation for requesting leave under the FMLA. Plaintiff claims she was constructively discharged because "any reasonable person subjected to the same conditions of employment as those" suffered by Plaintiff "would have been forced to quit" her job. (Pl.'s Mem. in Opp'n to Def.'s M. Summ. J. at 21). Plaintiff asserts she became severely depressed upon learning that even though she turned down the other better-paying job at MCV, she would not be promoted to an administrative faculty position; her health deteriorated as a result; despite her confidentiality concerns, Blatecky "hounded" her to provide medical documentation in addition to the brief note provided by her physician; despite her request, Blatecky refused to consider giving her leave share or leave without pay; and that if she did not capitulate to his demands, she would be terminated. Id. at 22. Defendant argues that Plaintiff can only raise an inference of constructive discharge where "there was discrimination so severe as to force a reasonable person to quit." (Def.'s Reply to Pl.'s Opp'n at 7).
To sustain a claim for constructive discharge, a Plaintiff must prove two elements: "deliberateness of the employer's action, and intolerability of the working conditions . . . [d]eliberateness exists only if the actions complained of `were intended by the employer as an effort to force the employee to quit.'" Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), quoting EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 672 (4th Cir. 1983), rev'd on other grounds, 467 U.S. 867. (1984). Furthermore, when an employer is aware of intolerable conditions and fails to take any remedial action, it may be a proper inference that the employer was attempting to force the plaintiff to resign. Holsey v. Armour Co., 743 F.2d 199, 209 (4th Cir. 1984).
While other courts have adopted an objective test dependent upon the reasonableness of the employer's action and the reasonableness of the employee's perception of the intolerable conditions, the result under either standard is the same. Levendos v. Stern Entertainment, 860 F.2d 1227 (3d Cir. 1988); Calhoun v. Acme Cleveland Corp., 798 F.2d 559 (1st Cir. 1986); Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1986); Lojek v. Thomas, 716 F.2d 675 (9th Cir. 1983).
In this case, neither the Plaintiff's claims nor the evidence supports a conclusion that she was subjected to intolerable workplace conditions contemplated in a constructive discharge claim. Paroline v. Unisys Corp., 879 F.2d 100, 114 (4th Cir. 1989), dissent adopted, 900 F.2d 27, 29 (4th Cir. 1990)( en banc). The recission of the promised promotion and tuition assistance, together with any of the harsh exchanges which took place in its wake, were neither objectively intolerable nor shown to be calculated to force Plaintiff to resign from employment. See Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995).
Plaintiff also claims that the Department retahated against her in response to her request for leave under the FMLA. (Mot. J., Counts IV and V; Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. at 22). Interference with, or retaliation against an employee for exercising his or her FMLA rights is strictly prohibited by the statute. 29 U.S.C. § 2615, 2617. To succeed on such a claim, however, the Plaintiff must show not only that there was interference or retaliation, but that there was a willful violation. See Settle v. S.W.Rodgers Co., Inc., 1999 WL 486643 (4th Cir. 1999), at * 3, (unpublished) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132-135 (1988)).
In this case, Plaintiff alleges that she was "hounded" by Blatecky to provide extraordinary documentation of her health condition in order to qualify for medical leave and that she was ultimately constructively discharged in contravention of the FMLA. (Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. at 22). While Blatecky admitted that he was preparing to terminate Plaintiff in anticipation of her non-compliance with the FMLA certification, she resigned before he took any action. (Blatecky Dep. at 32). Since there is no other evidence of retaliation, and the Defendant's actions were consistent with the provisions of the FMLA, Plaintiff cannot succeed on this claim as a matter of law because there was no violation (let alone a willful violation) of the statute to substantiate a claim of retaliation.
Conclusion
For the reasons stated, the Court concludes as a matter of law that the Plaintiff cannot sustain her burden of establishing a prima facie case of gender discrimination as alleged nor a violation of EMLA. Therefore, the Defendant's motion for summary judgment as to all pending claims is GRANTED and the action is DISMISSED. The Court also concludes, within the exercise of its discretion, that although the Plaintiff cannot prevail, her claims — based on all the pleadings and argument — are not so meritless as to warrant an award of fees and costs to the Defendant. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (a court may award attorney's fees and costs in a Title VII case only when the plaintiff has pursued a matter that is frivolous or utterly lacking in factual or legal foundation). The Defendant's demand for costs and fees is therefore
In two two recent unpublished opinions, the Fourth Circuit has affirmed this practice with respect to unsuccessful Title VII claims. Johnson v. South Carolina Dept. of Health and Environ. Control, 2000 WL 292630 (4th Cir. 2000)(unpublished) (Court of Appeals refused DHEC's request for fees and "double costs" because nothing in the record indicated that Plaintiff's claims were "harassing or motivated by malice."); EEOC v. MCI Telecomm., Inc., 1999 WL 547906 (4th Cir. 1999)(unpublished) (Court of Appeals reversed District Court's award of costs and fees to successful defendant because the District Judge erroneously concluded that the EEOC suit was frivolous based on her misapplication of Fourth Circuit precedent.).
DENIED.
An appropriate Order shall issue.
United States District Court, E.D. of Virginia, Richmond Division.
ORDER
This matter is before the Court on the Defendant Virginia Commonwealth University's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth in the accompanying Memorandum Opinion, the motion is hereby GRANTED and the case is
DISMISSED. It is further
ORDERED that the Defendant's related motion for fees and costs is DENIED.