Opinion
Case No. 6:00-cv-894-Orl-3ABF
January 18, 2002
MEMORANDUM OPINION AND ORDER
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. Doc. No. 23)
FILED: November 14, 2001
THEREON it is ORDERED that the motion is GRANTED.
Plaintiff, Millie D. McFadden sues her former employer, Lockheed Martin Information Systems, (herein "Lockheed") alleging one count of "unlawful racial, age and gender discrimination and retaliation" under Title VII, 42 U.S.C. § 2000e et seq. and, apparently, the ADEA, 29 U.S.C. § 621 (Doc. No. 11). Defendant has denied the allegations and moves for summary judgment. The Court has reviewed the record, including the briefs of the parties, with attached exhibits (Doc. Nos. 23, 24 and 32), the depositions filed by Defendant (Doc. Nos. 25-29), Interrogatories filed by Defendant (Doc. No. 31), and the applicable law. The Court concludes that Defendant is entitled to summary judgment as a matter of law.
Lockheed moved to strike portions of Plaintiff's affidavit (Doc. No. 33). That motion is DENIED as moot in light of the granting of the motion for summary judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when the Court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the Court must view all of the evidence in a light most favorable to the non-moving party. Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). The moving party has the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Then, the "non-moving party . . . bears the burden of coming forward with sufficient evidence of every element that he or she must prove." Rollins v. Techsouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). To that end, the nonmoving party must go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
FACTUAL BACKGROUND
Plaintiff is female and Caucasian. At age sixty-seven, Plaintiff was hired by Lockheed as an administrative assistant, an entry level position, paying $24,421.28 (Doc. No. 23, Exhibit E). In April 1996, Plaintiff applied for and received a promotion to a labor grade 7 "contracts specialist" position. Plaintiff was sixty-eight years old when she was promoted, and received a salary increase to $35,100.00 ( Id., Exhibits B, C and E.) The Director of the Contracts Department, Scott Cunningham, approved her promotion ( Id., Exhibit A).
The labor grade 7 contract specialist position was an entry-level exempt position. Id. Plaintiff's job was to administer contracts for purchases and shipment of parts and repairs relevant to Lockheed's Image Generation Systems (herein the "aviation contract") ( Id.) Contract specialists in higher labor grades such as 6 or 5 had more responsibility and discretion, administered sophisticated contracts with higher dollar value items, negotiated contracts and worked with less supervision. ( Id.)
In the spring of 1999, Cunningham received a reduction in force cost-cutting directive, due to a loss of contract work in the Support Solutions product area. ( Id.) As a result, Cunningham was to eliminate three positions in the Contracts Department. Defendant states that it followed its procedure in selecting candidates for lay-off. Namely, Cunningham compared and ranked employees in the same labor grade and job classification — labor grade 7 contracts specialists. He based the rankings on the employees' annual performance evaluations and feedback from managers. After comparing the employees, Cunningham ranked Plaintiff the lowest among the labor grade 7 contract specialists. ( See Doc. No. 23, A, Exhibit 1 — the Lay Off Comparison Matrix). Cunningham believed, based on the evaluations and feedback, that Plaintiff was a low performer relative to the persons to whom she was compared. (Doc. No. 23, Exhibit A). On her last two evaluations, Plaintiff received a "C" rating, which was the second lowest rating. ( Id., Exhibit F).
Plaintiff states that "Defendant did not utilize Plaintiffs or other employees annual evaluations . . . to determine the severance of Plaintiff but rather a little disclosed (that is "secret") evaluation list performed [sic] by some senior managers to list employees as "targets" for lay off or staff reductions." (Doc. No. 32, p. 3). Plaintiff, however, cites no record support for this conclusion.
Indeed, the citation directly following the quoted assertion is to the Lay Off Matrix and McFadden's two annual evaluations, which fully support Defendant's assertions. Assuming that Plaintiff meant to reference Doc. No. 23, Exhibit A -4, that document appears to identify several employees, including Plaintiff, as "bottom 10% performers" and lists the status of the employee's performance for the particular month noted. Plaintiff was identified as a bottom 10% performer for May 1997 and February 1998. She is the only level 7 employee on the list. The list notes improvement in her performance and no mention is made of lay off candidate status or other adverse action. Even when viewed in light most favorable to Plaintiff, this document does not support her position that she was "targeted" for lay off for discriminatory reasons.
On May 11, 1999, the Executive Review Committee approved Plaintiff and two other employees for lay off. Plaintiff was notified by letter of her selection (Doc. No. 23, Exhibit 5 to Exhibit A). Work that had been performed by Plaintiff was assigned to Rosie Laster, an African American female who was then 48 years old. Laster was a labor grade 7 contract specialist, and a comparator on the lay off matrix. Laser had received higher scores on her annual evaluations than did Plaintiff, had more seniority and had a Master's degree, which Plaintiff did not have. ( Id., Exhibit B, C and F). Cunningham stated that, in addition to the above, he believed that Laster was more versatile and "exuberated more criticality" than Plaintiff, and so he ranked her higher than Plaintiff ( Id., Exhibit A). The lay off matrix indicates each candidate's age, ethnicity and gender. ( Id., Exhibit A-1). According to Defendant, an employee's age, gender or race are only considered if there are two or more employees with identical rankings and one of the employees is in an underutilized category. ( Id., Exhibit A). Here, there were no employees with identical rankings and Defendant states that it did not consider any of these factors in making the lay off decision.
The meaning of this phrase is unclear, but it apparently refers to some skill or characteristic valued by Defendant.
Prior to the effective date of Plaintiff's layoff, but after the lay off was approved, two employees voluntarily left the Contracts Department. As a result, Cunningham exceeded the cost-cutting directive. ( Id.) At the same time, there was an increased need for a labor grade 7 contract specialist to work on an international contract (herein "the Army contract"). Cunningham posted the new position. Plaintiff was aware of the position but did not apply for it. (Doc. No. 26, McFadden deposition, March 14, 2001, pp. 143-145.)
On July 7, 1999, two weeks prior to Plaintiff's scheduled lay off date, another employee filed a complaint with Lockheed's internal Ethics Department, questioning the appropriateness of posting a new labor grade 7 contracts specialist position after Plaintiff was selected for lay off from the same position (Doc. No. 23, Exhibit G). The complaint was investigated by Lockheed's Ethics Officer, Tim Boehm. Boehm concluded that the lay off followed company policy and was processed properly, but that circumstances had changed since that decision was made and as there was now an open position at the same job level in the same area as Plaintiff, Plaintiff should be assigned the new position ( Id.) Management agreed and Lockheed decided to rescind the lay off of Plaintiff, cancel the posting of the new position and assign Plaintiff to that position. (Doc. No. 23, Exhibit G, Exhibit A). Cunningham decided to keep Laster on the aviation contract, as she had been working on it since Plaintiff's work was transferred to her and was developing relationships with the customers. (Doc. No. 23, Exhibit A). Plaintiff was to be assigned to the new position, working on the Army contract.
Plaintiff argues that the lay off was not rescinded but instead was an offer to rescind. She cites no record support for this contention.
On July 16, 1999, the last day of Plaintiffs employment before her scheduled lay off, Cunningham and Boehm met with Plaintiff and gave her a letter, which stated, in pertinent part:
The notification of layoff you received on June 3, 1999 with an effective date of July 16, 1999 has been rescinded. You are reassigned to the same position you had when notified of the layoff. Your supervisor will be Lawrence Baker. Congratulations on your assignment and I wish you continued success with Lockheed . . . (Exhibit 8)
In the meeting, Cunningham explained to Plaintiff that she would continue at her same job classification, rate of pay and benefits, under the same manager, but that she would be working on a different assignment with a different product. (Doc. No. 23, Exhibits A, G). According to Plaintiff: "I was called into the Director's office and handed a curt memo recinding [sic] my lay off but the verbal discussion told me I would not go back to my own job, I would instead be assigned to the Army job." (Doc. No. 23, Exhibit I). Plaintiff admits that the Army job was "identical to my job, in the same department and at the same pay level" (Exhibit I, paragraph 6) but she felt that "it wasn't the type of job that I would choose to do" as she was unfamiliar with the Army area and had no interest in it (Doc. No. 27, McFadden Deposition, April 6, 2001, pp. 24-25). Plaintiff requested and was given the weekend to consider the new development.
The day after her meeting, on July 17, 1999, Plaintiff prepared two separate letters to Cunningham (Exhibits J and K), acknowledging the "written offer to continue in the same position I had but noticeably reporting direct[ly] to the Manager, not to my present supervisor, and the verbal understanding that the Manager, Larry Baker, could use my services where he saw fit . . .". In her letters, Plaintiff states: "I cannot accept your offer." Instead, Plaintiff proposed to proceed with the lay off and offered her services on a contract basis to continue working on the aviation contract. On Monday, Plaintiff returned to Lockheed "to give a counter offer to continue working on my project . . . on the basis of a contract contractor . . ." (Doc. No. 28, Deposition of McFadden, p. 331.) Plaintiff intended to discuss her offer to work on a contract basis, but neither Cunningham or Boehm was in the office. (Doc. No. 28, p. 334). She left her letters "with them" and went to her old desk, which was now occupied by Laster. Plaintiff testified that the "point of my going back on Monday was to discuss what's going to happen . . . I assumed that when I went back on Monday that there would be some conversation. This is what we plan to do with you . . . We either accept or reject the fact that you want to work as a contract officer, any of that . . ." (Deposition of McFadden, Doc. No. 28, p. 334.)
On July 22, Plaintiff was notified by telephone that her proposal was not accepted by Lockheed. ( Id. at 335). Lockheed processed Plaintiffs departure as a lay off, entitling Plaintiff to severance benefits and to apply for unemployment compensation. (Doc. No. 23, Exhibit A., G and L). In October 1999, Lockheed posted the labor grade 7 contract specialist position for the Army contract. Plaintiff did not apply. A white male was hired. (Doc. No. 23, Exhibit A).
Plaintiff filed a Complaint with the EEOC and the state agency, contending that she was discriminated against based on her age, race and "equal pay" (Exhibit N).
ANALYSIS
Claims Properly Before The Court
In Plaintiff's EEOC charge of discrimination, she claims age discrimination, race discrimination and a violation of the Equal Pay Act. In her Complaint, however, Plaintiff purports to raise additional claims of sex discrimination and retaliation. Defendant contends that Plaintiff is barred from asserting these claims, as they are not included in her charge of discrimination, citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). Plaintiff, in her papers, does not address this issue at all.
In a civil action, a Title VII complaint may encompass only discrimination like or related to allegations contained in the EEOC charge. Mulhall v. Advance Security Inc., 19 F.3d 586, 589 n. 8 (11th Cir.), cert. denied, 513 U.S. 919, 115 S.Ct. 298, 130 L.Ed.2d 212 (1994). Exhaustion of administrative remedies is a condition precedent to the filing of a Title VII action. Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Here, Plaintiff does not dispute that her charge did not set forth a claim for retaliation. As such, her retaliation claim is not properly before the Court. As for her sex discrimination claim, Plaintiff has yet to adequately describe her claim. To the extent Plaintiff is alleging sex discrimination in the lay off decision, that claim is not included in her charge and is thus barred. To the extent Plaintiff is alleging that she was discriminated against by being overlooked for promotion, this claim, too, is barred because a "claim of unequal pay is not the equivalent of a claim alleging a failure to promote." Mulhall v. Advance Sec., Inc., supra, at 589. Thus, it appears that the only sex discrimination claim that is "like or related to" the charge of discrimination is a claim that Plaintiff was paid less than other workers based on her sex.
Defendant also argues that Plaintiff's age discrimination claim should be dismissed, as Plaintiff brings her action under Title VII, and does not directly and separately plead a cause of action under the ADEA. Plaintiff does not address this issue, but, construing the Amended Complaint in favor of the nonmoving party, the Court finds that the issue was sufficiently, although inartfully, raised.
Defendant also argues that Plaintiff has not properly plead a cause of action under the Equal Pay Act. The Court agrees. The Amended Complaint does not purport to state a claim of violation of the Equal Pay Act, although the Act was mentioned by name in the discrimination charge. Instead, it appears that Plaintiff is pursuing a Title VII claim that Plaintiff was paid less than male workers because of her sex.
The claims properly before the Court are as follows: Plaintiff's race discrimination claim, age discrimination claim, and sex discrimination claim, to the extent that Plaintiff is asserting that she was paid less than her male co-workers, due to her gender. Plaintiff's claims of failure to promote, retaliation, and violation of the Equal Pay Act are DISMISSED and summary judgment is GRANTED in favor of Defendant as to these claims.
Framework For Analysis
A plaintiff in an employment discrimination case has the ultimate burden of proving that the defendant intentionally discriminated against her. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff can meet the burden by producing direct or circumstantial evidence of discrimination. Id. Here, Plaintiff presents no direct evidence of discrimination.
Plaintiff appears to rely on a remark she alleges was made by a human resources person regarding the need to "maintain the mix, whatever that means" (McFadden deposition, April 6, 2001, p. 54). An ambiguous remark, made by a nondecision maker is not direct evidence of discrimination. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
In Trotter v. Board of Trustees of University of Alabama, 91 F.3d 1449 (11th Cir. 1996), the Court of Appeals for the Eleventh Circuit set forth the appropriate analysis applicable to employment discrimination cases based on circumstantial evidence:
We evaluate Title VII claims supported by circumstantial evidence using the familiar framework set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Initially, the plaintiff has the burden of establishing a prima facie case of discrimination. Id. at 802, 93 S.Ct. at 1824. The plaintiffs prima facie case gives rise to a presumption of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir. 1994). If the plaintiff establishes a prima facie case, the defendant has a burden of producing a legitimate, nondiscriminatory reason for the challenged action. This places upon the defendant merely an intermediate burden of production. Turnes, 36 F.3d at 1060. To satisfy this burden of production, the "defendant need not persuade the court that it was actually motivated by the proffered reasons. . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). In other words, a defendant satisfies its intermediate burden of production if it produces "admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Turnes, 36 F.3d at 1061-62 (quoting Burdine, 450 U.S. at 257, 101 S.Ct. at 1095-96) (emphasis in Turnes). If a defendant succeeds in carrying its intermediate burden of production, the McDonnell Douglas framework, along with its presumption of discrimination, drops out of the case and the trier of fact proceeds to the ultimate issue of whether the plaintiff has proven that the defendant intentionally discriminated. Id. at 1061. On the other hand, "[w]here a plaintiffs prima facie case is established, but the employer fails to meet its burden of production, the unrebutted presumption of discrimination stands." Id.
If the defendant satisfies its burden of production, the plaintiff has an opportunity to show by a preponderance of the evidence that the reasons offered by the defendant are a mere pretext for discrimination, and to persuade the factfinder that the defendant intentionally discriminated against the plaintiff. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94.91 F.3d at 1454-55.
The Prima Fade Case
A disparate treatment claim is analyzed under the familiar McDonnell Douglas/Burdine standard. In the instant case, Plaintiff must produce evidence that: 1) she is a member of a protected class under Title XII; 2) an adverse employment action occurred; 3) she and a similarly situated non-protected person received dissimilar treatment; and, 4) sufficient evidence, either circumstantial or direct, exists to infer a nexus or causal connection between her protective status and the disparate treatment. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). On her remaining claims, Plaintiff has failed to establish a prima facie case.
This analysis also applies to Plaintiff's ADEA claim. See Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000).
Plaintiff, a woman over forty, is in a protected class, but, with respect to her lay off, she has not established that an adverse employment action occurred. Conduct that alters an employee's compensation, terms, conditions, or privileges of employment constitutes an adverse action under Title VII. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1283 (11th Cir. 1999). As the undisputed facts show, Plaintiff was initially selected for lay off, but the lay off was rescinded prior to becoming effective. Plaintiff was to resume her same job, with the same pay, benefits and classification. The only difference was that Plaintiff was to work on a different assignment — an Army contract as opposed to an aviation contract. Plaintiff clearly did not wish to change assignments, but "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). This change of assignment, without any impact on job duties, pay, benefits or responsibilities, is not an adverse employment action. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232 (11th Cir. 2001) (holding that, in order to prove adverse employment action in a Title VII case, an employee must show a serious and material change in the terms, conditions, or privileges of employment, and finding that a change in work assignment that did not cause economic injury was not adverse employment action) (emphasis original).
To the extent Plaintiff contends that the hiring of a white male for the Army contract was an adverse employment action, such a contention does not survive summnary judgment. The undisputed facts show that Plaintiff refused the Army contract position. Defendant posted the position again and hired a white male only after Plaintiff had already rejected the position months before. Under these circumstances, the subsequent hiring of a white male in a position Plaintiff was offered but rejected, can hardly be "adverse" to her.
As shown above, Plaintiff sent two letters to Defendant, specifically rejecting the offer of the position and suggesting, instead that she continue on her aviation project.
As for the unequal pay claim, Plaintiff failed to show dissimilar treatment among similarly situated male and female employees. Plaintiff argues in her brief: "Some men with less experience and far fewer contracts to work on were paid more than Plaintiff (i.e. Chamberlain [sic], see Def. Ex. E., p 5 and P1. Ex. One, p 6)." Defendant's Exhibit E, however, is an affidavit of Lockheed's senior compensation analyst, and sets forth the grades and salaries of certain of Plaintiff's co-workers. That Affidavit indicates that Chamberland was not a labor grade 7 contract specialist, such as Plaintiff. Chamberland was a labor grade 6 senior contact specialist. As such, he was in a higher labor grade position than Plaintiff, and, according to the unrebutted Affidavits of Defendant, had more responsibility and discretion, administered sophisticated contracts with higher dollar value items, negotiated contracts and worked with less supervision than a labor grade 7 specialist. Thus, Chamberland was not similarly situated to Plaintiff.
Plaintiff generally alleges in her exhibit attached to her response brief that "males with far less experience than I were hired in at higher pay" but fails to identify any male labor grade 7 contract specialist that was paid more than she was. As such, Plaintiff has not met her burden of designating specific facts showing a genuine issue for trial.
Plaintiff has failed to establish a prima facie case for discrimination in that she can not establish she suffered an adverse employment action.
Legitimate non-discriminatory reason
Plaintiff appears to argue that simply being selected for lay off was an adverse employment action. Even if Plaintiff were correct (which she is not, on the facts of this case), Plaintiff fails to overcome Defendant's proffered legitimate business reason for selecting Plaintiff for lay-off. As detailed above, Defendant has brought forth proof that it followed non-discriminatory procedures in ranking the employees based on evaluations and manager feedback and that the decision to lay off Plaintiff was based on those rankings. Although Plaintiff argues the existence of a "secret" list which illegally targeted her for lay off, she offers no evidence of such a list, and does not dispute her evaluation scores or the scores of her comparators. She does not dispute that Ms. Laster had more seniority and a Master's degree. Thus, even if Plaintiff were to establish her prima facie case, she has not met her burden of establishing pretext.
While Plaintiff disputes that she deserved her low scores, she does not dispute that she, in fact, received them, well before the decision to lay off was made.
The essence of Plaintiff's claim is that she believed herself to be more qualified than her coworkers, who were not selected for lay off. Such a belief is not determinative. Even if Plaintiff could show that she was, in fact, more qualified than Laster, she cannot establish pretext without "adduc[ing] evidence that the disparity in qualifications is `so apparent as virtually to jump off the page and slap you in the face.'" Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001) quoting Denny v. City of Albany, 247 F.3d 1172, 1187 (11th Cir. 2001). No such showing has been made here.
CONCLUSION
Defendant has shown that there is no genuine issue of material fact and it is entitled to summary judgment on Plaintiff's Amended Complaint. The Clerk is directed to enter final judgment in favor of Defendant and against Plaintiff and to close this case.