Summary
holding that the on-site managers of an apartment complex were "administrative" employees because they managed employees, hired staff and made the day-to-day decisions regarding the management of their facilities
Summary of this case from McKinney v. United Stor-All Ctrs. LLCOpinion
Civil Action No. 03-762 (GK).
April 28, 2005
MEMORANDUM OPINION
Plaintiffs, Johnny Moncrief and Sheila Groves, employees of Defendant Daro Realty, Inc. ("DARO"), bring this suit alleging violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201, et seq., the D.C. Wage and Hour Law, D.C. Code Ann. §§ 32-1003, et seq., the D.C. Wage Payment and Collection Law, D.C. Code Ann. §§ 32-1301, et seq.; the D.C. Human Rights Act, D.C. Code Ann. §§ 2-1401, 2-1411.06, and 42 U.S.C. § 1981. This matter is before the Court on Defendant's Motion for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is granted in part and denied in part.
I. BACKGROUND
A. Statement of Genuine Issues
Local Rule 7.1(h) requires both parties to identify with particularity those material facts necessary to support their motions for or in opposition to summary judgment. Specifically, Rule 7.1(h) provides:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. . . . In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
Local Rule 7.1(h) (emphasis added).
This Circuit has held that "[i]f the party opposing the motion fails to comply with this local rule, then `the district court is under no obligation to sift through the record' and should `[i]nstead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [7.1(h)] statement." Securities and Exch. Comm'n v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000) (internal citations omitted).See Jackson v. Finnegan, Henderson, Farabow, Garrett Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (concluding that Local Rule 7.1(h) "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record."). This Circuit demands strict compliance with this Rule. See id.
Plaintiffs have failed to comply with both Local Rule 7.1(h) and Federal Rule of Civil Procedure 56(e). Plaintiffs' "Statement of Contested Material Facts" is "`[r]eplete with factual allegations not material to [plaintiffs'] substantive claims[,]' and `[by] repeatedly blending factual assertions with legal argument, [it] does not satisfy the purposes of a Rule [7.1(h)] statement.'" Colbert v. Chao, 2001 WL 710114, *8 (D.D.C.) (quoting Jackson, 101 F.3d at 153).
Federal Rule of Civil Procedure 56(e) provides, in pertinent part,
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.Pro. 56(e).
Moreover, Plaintiffs have not complied with the requirement that the affidavits, deposition excerpts, and other materials offered by the nonmoving party constitute competent evidence, rather than evidence which is "merely colorable" or "not significantly probative." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Throughout their filings, Plaintiffs rely almost exclusively upon the conclusory and vague allegations in their Amended Complaint and their own self-serving affidavits and deposition testimony.
While Plaintiffs cite to Exhibits A, B, C, etc., in their Opposition to Defendant's Motion for Summary Judgment, no such exhibits were filed. All exhibits referenced herein were filed by Defendant.
In sum, Plaintiffs' "Statement of Contested Material Facts" "cannot serve to refute any of the specific factual assertions that [D]efendant has proffered." Mack v. Strauss, 134 F.Supp.2d 103, 108 (D.D.C. 2001). As such, the material facts submitted by Defendant will be deemed admitted because they have not been adequately controverted.
B. Factual History
DARO, which operates thirteen apartment buildings in the District of Columbia, currently employs four Resident Managers, including Moncrief and Groves, who are responsible for "the overall management of apartment buildings, including, among other things, marketing, leasing, handling personnel issues, administrative work, and tenant relations." Meit Decl. ¶ 4.
David Meit is DARO's Executive Vice President of Property Management.
Moncrief, an African-American male, was hired by DARO in 1978 to "supervise the on site maintenance staff at 1600 16th Street, NW, Washington, DC 20009." Am. Compl. ¶ 14. As part of his duties, he "rented apartments, took applications, verified applications, and took the applications to the main office of DARO, ordered supplies, handled evictions, took all leases to the main office of DARO, picked up plumbing parts, hired desk clerks, porters, maintenance men and painters." Id. ¶ 15.
Since 1980, DARO has given Moncrief six additional buildings to manage. See id. ¶¶ 17, 18, 19. Moncrief's current responsibilities include: (1) supervising more than twenty DARO employees, see Ex. 17, No. 33; (2) interviewing desk clerks, porters, maintenance men and painters for vacant positions, see Am. Compl. ¶ 15; (3) if necessary, terminating the employment of his subordinate workers, see Ex. 17, No. 37; (4) addressing tenant complaints, see Ex. 2 at 34; (5) ordering supplies, leasing apartments and overseeing the turnover of vacant apartments, see id. at 35-36; and (6) deciding what repairs need to be made and arranging for and supervising outside contractors when their services are needed. See id. at 35-37.
Moncrief is currently DARO's highest paid Resident Manager.See Sugar Decl. ¶ 3. He earns a weekly salary of $870.45, see Ex. 2, No. 1, and is provided a rent-free, income tax-free apartment. During his tenure at DARO, Moncrief has never submitted an application for any position at all that has become available. See Ex. 3, No. 51.
Deborah Sugar is DARO's Comptroller.
Groves, an African-American female, was hired by DARO in July 2001 to replace Robert Powell, a while male, to manage approximately 200 units in two buildings, Sedgwick Gardens and Tilden Hall. See Am. Compl. ¶ 9. Groves was paid a higher salary than Powell. See Sugar Decl. ¶ 4. Groves' currently salary is $17.34 per hour. See id. ¶ 5. In addition to her salary, Groves, like Moncrief, is provided a rent-free, income tax-free apartment.
As part of her duties, Groves (1) supervised five maintenance employees and eleven desk clerks, see Ex. 5 at 35; (2) interviewed eight employees for vacant positions, see Ex. 6, No. 48; (3) ordered supplies, leased apartments and oversaw the turnover of vacant apartments, see Ex. 42, No. 2; and (4) otherwise managed the two buildings.
On February 1, 2003, Groves was transferred to the position of Resident Manager of Cathedral Court, a smaller 58-unit building.See Ex. 5 at 40. At Cathedral Court, she supervises only one employee. See Pls.' Opp'n at 10. According to Meit, "[t]he decision to transfer Ms. Groves from Sedgwick Gardens and Tilden Hall to Cathedral Court was based upon legitimate reasons, including the decline in economic occupancy rates, complaints from tenants about Ms. Groves and my understanding that she was not regularly visiting Tilden Hall due to her limited mobility."See Meit Decl. ¶ 13. Groves was transferred with no reduction in pay. See Sugar Decl. ¶ 5.
DARO hired Steve Philbin, a white male, to replace Groves at Sedgwick Gardens and Tilden Hall. See Ex. 44 at 13. As part of his duties, Philbin (1) develops DARO's corporate housing program and company-wide standard operating procedures; (2) develops "ideas on how DARO can better operate its corporate portfolio from a strategic point of view;" (3) develops "protype maintenance shop standards at DARO;" and (3) manages Sedgwick Gardens, Tilden Hall, and one other DARO building. Philbin Decl. ¶ 7.
On October 5, 2003, Groves' responsibilities at Cathedral Court were changed. In an October 3, 2003 memorandum to Groves outlining this change, Meit cited her "significant problems satisfactorily performing her duties as a resident manager at Cathedral Court." Ex. 30 at 1. Specifically, Meit claimed that Groves had "failed to perform the requested semi-annual apartment inspections that are past due as of June 30th" and had "failed to turn apartments in a timely manner or in accordance with DARO's prescribed renovation criteria." Id. He also pointed to a decline in economic occupancy rates and complaints from tenants about her. Id.
Groves is currently DARO's second highest paid Resident Manager. See Sugar Decl. ¶ 3. During her tenure at DARO, she has never submitted an application for any position at all that has become available. See Ex. 48, No. 75.
On March 26, 2003, Plaintiffs filed the instant action. On April 30, 2003, they filed an Amended Complaint which included essentially the same allegations as their Original Complaint. In Counts I and II of the Amended Complaint, Plaintiffs claim that Defendant violated the Fair Labor Standards Act of 1963 ("FLSA"), 29 U.S.C. § 207(a)(1), by "failing to pay overtime compensation for all work in excess of forty (40) hours to Plaintiffs." Am. Compl. ¶ 51. In Counts III and IV, Plaintiffs make the same claim under the D.C. Wage and Hour Law, D.C. Code §§ 32-1003, et seq., and the D.C. Wage Payment and Collection Law, D.C. Code Ann. §§ 32-1301, et seq..
In Count V of the Amended Complaint, Moncrief claims that he was subjected to a hostile work environment on the basis of his race in violation of the D.C. Human Rights Act, ¶¶ 2-1401, 2-1411.06. Specifically, he alleges that "[f]or the past several years of his tenure at DARO, [he] has endured negative comments by David Meit regarding negative stereotypes of African Americans." Am. Compl. ¶ 72. In his Deposition, he clarified that there were three occasions when Meit "did anything that was offensive:" (1) Meit commented "that the black neighborhood [surrounding a DARO property] was a different world," Ex. 2 at 39; (2) "Mr. Meit has referred to maintenance men as boys," id. at 41; and (3) "Mr. Meit distributed a flier referring to employees as mules." Id. at 42.
In Count VI, Groves claims that Defendant violated the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), by "paying its female employees less than its male employees despite the fact that said female employees had the same titles, duties and responsibilities as their male counterparts." Am. Compl. ¶ 81. In Groves' Interrogatory Answers, she clarified that her EPA claim is based on her assertions that: "Several female managers receive less than maintenance men in the company. Plaintiff Groves is paid less than Steve Philbin." Ex. 42, No. 4.
In Count VII of the Amended Complaint, Plaintiffs claim that Defendant subjected them to disparate treatment on the basis of their race in violation of 42 U.S.C. § 1981. Specifically, they allege that (1) Moncrief "has never been promoted," Am. Compl. ¶ 88; (2) Groves "was hired only to perform manual labor necessary to get the Sedgwick Gardens into shape and once the work was completed, she was replaced by a white male," id. ¶ 89; (3) "Plaintiffs have not been provided with the tools necessary for their positions but such tools were provided to white management employees," id. ¶ 90; (4) Plaintiffs "were required to purchase their own computers and were required to use said computers for Defendant's work" while "[w]hite management employees were given access to company computers and were not required to purchase their own computers," id. ¶¶ 91, 93; (5) "Defendant has developed a two tier management level, one for African-Americans and one for Caucasians," and has "deliberately and wilfully prevented African-Americans from being a part of the top tier while African-Americans are kept at the bottom level," id. ¶¶ 94, 95; and (6) Plaintiffs use their own vehicles for their work, unlike "[t]he Caucasian managers of Defendant DARO [who] are provided with company cars and/or provided with reimbursement for gasoline and maintenance."Id. ¶¶ 102, 103, 104.
In Plaintiffs' Opposition to Defendant's Motion for Summary Judgment, they also allege that (1) Moncrief has never taken all of his vacation time and he is not given compensation for that unused time, see Pls.' Opp'n at 7; (2) Plaintiffs "are required to attend various seminars and meetings but neither one is reimbursed for travel expenses," id. at 6; (3) Groves "does not have a cell phone issued to her by the company. Rather, she was forced to use her personal phone." Id. at 7; (4) Moncrief was never permitted to attend classes to become an accredited resident manager "although Mr. Philbin who had worked for DARO for only 9 months was recommended by Mr. Meit to attend the classes," id. at 14-15; (5) Meit sends a "barrage of e-mails treating [Plaintiffs] as though they are children who need to be reminded of simple tasks," id. at 16; and (6) Groves was transferred from Sedgewick Gardens/Tilden Hall to Cathedral Court, "a building in deplorable condition." Id. at 17.
Plaintiffs seek unpaid overtime plus prejudgment interest, compensatory and punitive damages, liquidated damages and attorneys' fees.
On April 2, 2004, Defendant filed the instant Motion for Summary Judgment.
II. STANDARD OF REVIEW
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show 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. See Fed.R.Civ.P. 56. Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party then must "go beyond the pleadings and by [its] own affidavits, or by `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324. See Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (nonmoving party has affirmative duty "to provide evidence that would permit a reasonable jury to find" in its favor);Crenshaw v. Georgetown Univ., 23 F.Supp.2d 11, 15 (D.D.C. 1998) (noting that "adverse party must do more than simply `show that there is some metaphysical doubt as to the material facts'" (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986))).
In deciding a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). See Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). Ultimately, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
III. ANALYSIS
A. Defendant Is Entitled to Summary Judgment on Counts I, II, III and IV of the Amended Complaint because Plaintiffs Are Employed in an "Administrative" Capacity
In Counts I and II of the Amended Complaint, Plaintiffs claim that Defendant violated the FLSA, 29 U.S.C. § 207(a)(1), by "failing to pay overtime compensation for all work in excess of forty (40) hours to Plaintiffs." Am. Compl. ¶ 51. In Counts III and IV, Plaintiffs make the same claim under the D.C. Wage and Hour Law, D.C. Code §§ 32-1003, et seq., and the D.C. Wage Payment and Collection Law, D.C. Code Ann. §§ 32-1301, et seq.. Defendant argues that Plaintiffs are employed in both an "executive" and "administrative" capacity and are, therefore, exempt from overtime pay requirements. See 29 U.S.C. 213(a)(1), D.C. Code §§ 32-1004(a)(1), 32-1301(2).
Section 207(a)(1) of the FLSA states,
Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaging in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1).
Neither the D.C. Wage and Hour Law nor the D.C. Wage Payment and Collection Law contain any independent requirement that an employer pay overtime.
The FLSA "contains a presumptive rule that employees who work more than forty hours in a week must receive overtime compensation." Am. Fed'n of Gov't Employees v. Office of Pers. Mgmt., 821 F.2d 761, 770 (D.C. Cir. 1987). See 29 U.S.C. § 207(a)(1). Although an employee is exempt from overtime if s/he is employed in an "executive" or "administrative" capacity, as defined by the Secretary of Labor, 29 U.S.C. § 213(a)(1), "the burden is on the employer to demonstrate the employee is in fact exempt." Am. Fed'n of Gov't Employees, 821 F.2d at 771 (emphasis in original).
In its implementing regulations, the Labor Department created a "long test" and a "short test" to determine whether an employee is employed in an administrative capacity. See 29 C.F.R. § 541.2. Plaintiffs concede that they are subject to the "short test" because they earn at least $250 per week. See Pl.s' Opp'n at 5 (citing 29 C.F.R. § 541.2(e)(2)). Under the "short test," Defendant must prove that (1) Plaintiffs' "primary duty" consists of the "performance of office or nonmanual work directly related to management policies or general business operations of [the] employer or [the] employer's customers" which (2) "requir[es] the exercise of discretion and independent judgment." 29 C.F.R. § 541.2(e)(2).
Plaintiffs do not contest Defendant's claim that they primarily perform "office or non-manual work." Thus, the only remaining issue is whether Plaintiffs exercise "discretion and independent judgment."
"In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.207(a). This process "implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance." Id. However, it "does not necessarily imply that the decisions made by the employee must have a finality that goes with unlimited authority and a complete absence of review." Id. § 541.207(e)(1).
In the instant case, it is undisputed in the record that Plaintiffs supervised other employees, assigned and directed the work of other employees and contractors, ordered supplies, handled employee issues, made day-to-day decisions, handled tenant complaints and leased apartments. There can be little doubt that these responsibilities require the exercise of discretion and independent judgment.
Plaintiffs claim, however, that they do not exercise discretion and independent judgment, and thus are not "administrative" employees, because "[a]ny decision they make is subject to the approval and or rejection by their managers." Pls.' Opp'n at 6. They also argue that "neither Mr. Moncrief or Ms. Groves has the authority to make any policy or develop any procedures outside of the company policies and procedures," and that they "have no input into the development of the policy and procedures." Id.
This argument fails because, as numerous other circuits have held, an employer may "actively supervise" its employee without eliminating discretion or independent judgment. McAllister v. Transamerica Occidental Life Ins. Co., 325 F.3d 997, 1001 (8th Cir. 2003). See Piscione v. Ernst Young, LLP, 171 F.3d 527, 535-36 (7th Cir. 1999) ("`Even though [Plaintiffs'] work is subject to approval, even to the extent that a decision may be reversed by higher level management, it does not follow that the work did not require the exercise of discretion and independent judgment as the terms are defined for the administrative employee exemption.'") (quoting Dymond v. United States Postal Serv., 670 F.2d 93, 96 (8th Cir. 1982)); Reich v. John Alden Life Ins. Co., 126 F.3d 1, 13 (1st Cir. 1997) (standardized policies and procedures may circumscribe, but not necessarily eliminate, discretion); Renfro v. Ind. Mich. Power Co., 370 F.3d 512, 518-19 (6th Cir. 2004) (same). The Court has found no cases to the contrary and Plaintiffs have cited none.
In sum, Plaintiffs are employed in an "administrative" capacity and therefore are exempt from overtime pay requirements. Accordingly, Defendant is entitled to summary judgment on Counts I, II, III and IV of the Amended Complaint.
Since the Court has concluded that Plaintiffs are employed in an "administrative" capacity, it is unnecessary to address Defendant's claim that Plaintiffs are exempt "executive" employees.
B. Defendant Is Entitled to Summary Judgment on Moncrief's Hostile Work Environment Claim (Count V of the Amended Complaint)
In Count V of the Amended Complaint, Moncrief claims that he was subjected to a hostile work environment on the basis of his race in violation of the D.C. Human Rights Act, ¶¶ 2-1401, 2-1411.06. Specifically, he alleges that "[f]or the past several years of his tenure at DARO, [he] has endured negative comments by David Meit regarding negative stereotypes of African Americans." Am. Compl. ¶ 72. In his Deposition, he clarified that there were three occasions when Meit "did anything that was offensive:" (1) Meit commented "that the black neighborhood [surrounding a DARO property] was a different world," Ex. 2 at 39; (2) "Mr. Meit has referred to maintenance men as boys," id. at 41; and (3) "Mr. Meit distributed a flier referring to employees as mules." Id. at 42.
Defendant argues that it is entitled to summary judgment on Count V because Moncrief cannot make a prima facie case for his hostile work environment claim. Plaintiffs fail to respond to this argument. Indeed, they do not even mention the D.C. Human Rights Act or Count V in their Opposition to Defendant's Motion for Summary Judgment. The Court thus treats Defendant's argument as conceded. See United States v. Real Property Identified As: Parcel 03179-005R, 287 F.Supp.2d 45, 61 (D.D.C. 2003) ("If the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, the court may treat those arguments as conceded.") (internal citation omitted), and cases cited therein.
Defendant is also entitled to summary judgment on Moncrief's hostile work environment claim on the merits. A hostile work environment exists when workplace conditions are so suffused with "discriminatory intimidation, ridicule and insult" of such "sever[ity] or pervasive[ness] as to alter the conditions of the victim's employment and create an abusive working environment."Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998);Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2347 (2004); Stewart v. Evans, 275 F.3d 1126, 1133-34 (D.C. Cir. 2002). As the Supreme Court has emphasized, Title VII is not a "`general civility code'" and thus, "does not provide a cause of action for `ordinary tribulations of the workplace.'" Faragher v. Boca Raton, 524 U.S. 775, 788 (1998) (internal quotations omitted).
In determining whether a work environment is "hostile" or "abusive," courts examine the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 103 (2002); Faragher, 524 U.S. at 787-88.
To make a prima facie case for a hostile work environment claim, Plaintiff must adduce evidence to show that (1) he was a member of a protected class; (2) he was subjected to harassment; (3) the harassment complained of was based upon the protected status; (4) the charged harassment had the effect of unreasonably interfering with work performance and creating an intimidating, hostile, or offensive working environment; and (5) the employer knew or should have known of the harassment, but failed to take any action to prevent it. See Davis v. Coastal Int'l Sec., Inc., 275 F.3d 1119, 1122-23 (D.C. Cir. 2002).
In the instant case, it is clear that Defendant is entitled to summary judgment on Moncrief's hostile work environment claim because the conduct Moncrief alleges simply does not reflect theextreme conduct necessary to transform "the ordinary tribulations of the workplace" into a legally cognizable hostile work environment claim. See Clark County School Dist. v. Bredeen, 532 U.S. 268, 271 (2001) ("simple teasing, offhand comments, and isolated incidents (unless extremely serious)" are insufficient); Bundy v. Jackson, 641 F.2d 934, n. 9 (D.C. Cir. 1981) ("casual or isolated manifestations of a discriminatory environment, such as a few ethnic or racial slurs, may not raise a cause of action"); Stewart, 275 F.3d at 1134 ("Even a few isolated incidents of offensive conduct do not amount to actionable harassment."); Kidane v. Northwest Airlines, Inc., 41 F.Supp.2d 12, 16 (D.D.C. 1999) ("[T]hough remarks such as these, if true, doubtless are discriminatory and inappropriate, such isolated remarks are not sufficient to state a claim of hostile work environment under Title VII.").
C. Defendant Is Entitled to Summary Judgment on Count VI of the Amended Complaint because Groves Has Failed to Show a Prima Facie Violation of the Equal Pay Act
In Count VI, Groves claims that Defendant violated the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), by "paying its female employees less than its male employees despite the fact that said female employees had the same titles, duties and responsibilities as their male counterparts." Am. Compl. ¶ 81. In Groves' Interrogatory Answers, she clarified that her EPA claim is based on her assertions that: "Several female managers receive less than maintenance men in the company. Plaintiff Groves is paid less than Steve Philbin." Def.'s Ex. 42, No. 4. Defendant argues that Groves has failed to establish a prima facie violation of the Equal Pay Act because she cannot show that her job was substantially the same as either the maintenance men in the company or Philbin.
Groves failed to respond to Defendant's claim that she cannot show that her job was substantially the same as the maintenance men in the company. The Court thus treats that argument as conceded. See Real Property Identified As: Parcel 03179-005R, 287 F.Supp.2d at 61, and cases cited therein.
The EPA prohibits sex-based wage discrimination. "It stands for the straightforward proposition that employees doing equal work should be paid equal wages, regardless of sex."Goodrich v. Int'l Bhd. of Electrical Workers, AFL-CIO, 815 F.2d 1519, 1523 (D.C. Cir. 1987) (internal citation omitted).
The EPA amended § 6 of the FLSA, to state,
(d) Prohibition of sex discrimination
(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he [sic] pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .29 U.S.C. § 206(d)(1).
The plaintiff bears "the initial burden to prove wage disparity and job equality." Id. Specifically, to establish a prima facie violation of the EPA, the plaintiff must prove, by a preponderance of the evidence, that
(1) she was employed by [employer] doing substantially equal work on a job, the performance of which required substantially equal skill, effort, and responsibility as jobs held by members of the opposite sex; (2) the job was performed under similar working conditions; and (3) she was paid at a lower wage than members of the opposite sex doing equal work.Nyman v. FDIC Corp., 967 F.Supp. 1562, 1577 (D.D.C. 1997) (citing Corning Glass Works v. Brennan, 417 U.S. 188 (1974)). If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to "prove that unequal payments are made pursuant to some legitimate, non sex-based factor."Goodrich, 815 F.2d at 1523-24.
"Equal work" under the EPA "does not mean that the jobs being compared must be identical, but they must be more than merely comparable, i.e., capable of being compared." Id. at 1524 (internal citation omitted). "The prevailing standard is one of substantial equality." Id. (internal citation omitted). "A determination of substantial equality involves an inquiry into whether the jobs are substantially related and substantially similar in skill, effort, responsibility and working conditions."Id. (internal citation omitted).
In the instant case, Defendant is entitled to summary judgment on Groves' EPA claim because Groves cannot show that her job was substantially equal to Philbin's job. Groves is employed as a Resident Manager. It is undisputed that Groves' responsibilities initially were limited to managing two buildings, Sedgwick Gardens and Tilden Hall, and later involved managing only one building, Cathedral Court. Philbin is employed as a Property Manager. In that position, it is undisputed that he has a significantly broader range of responsibilities involving company-wide programs. In addition, he is responsible for managing three apartment buildings. Thus, the undisputed record makes clear that Groves' job is not substantially equal to Philbin's job. Therefore, Groves' EPA claim fails.
D. Defendant Is Entitled to Partial Summary Judgment on Plaintiffs' Disparate Treatment Claim (Count VII of the Amended Complaint)
In Count VII of the Amended Complaint, Plaintiffs claim that Defendant subjected them to disparate treatment on the basis of their race in violation of 42 U.S.C. § 1981. Defendant claims that Plaintiffs have failed to establish a prima facie case of disparate treatment and that regardless, Defendant has provided a legitimate, non-discriminatory reason for its actions.
1. The governing standard
The D.C. Circuit has held that the standards and order of proof in § 1981 cases are identical to those governing Title VII disparate-treatment cases. See Mungin v. Katten, Muchin, Davis, 116 F.3d 1549, 1553 (D.C. Cir. 1997); Berger v. Iron Workers Reinforced Rodmen Local, 843 F.2d 1395, 1412 (D.C. Cir. 1988). Thus, where, as here, Plaintiffs have no direct evidence that the adverse employment actions being complained of are the result of discrimination prohibited under § 1981, it is appropriate for the Court to analyze the claim under the three-step Title VII framework of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). See Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002).
First, the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas, 411 U.S. at 802. In order to establish aprima facie case, the plaintiff must show that "(1) she is a member of [a] protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150 (D.C. Cir. 2004) (citingStella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)).
The parties concede that both Plaintiffs are members of a protected class.
If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to produce evidence that the plaintiff was rejected for a legitimate, nondiscriminatory reason. Waterhouse, 298 F.3d at 992. "If the defendant satisfies that burden, `the McDonnell Douglas framework — with its presumptions and burdens — disappears[s] and the sole remaining issue [i]s discrimination vel non.'" Id. (emphasis in original). At this point, to survive summary judgment the plaintiff must provide evidence that would permit a reasonable jury to conclude that the defendant committed adverse actions for a discriminatory reason. Lathram, 336 F.3d at 1088; Waterhouse, 298 F.3d at 992.
2. Plaintiffs have established a prima facie case of discrimination
a. Plaintiffs have alleged actionable adverse actions
As indicated above, in order to establish a prima facie case of discrimination, Plaintiffs must show that they suffered an adverse personnel or employment action. See Stewart v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003); Brown v. Brody, 199 F.3d 446, 455 (D.C. Cir. 1999). Plaintiffs claim that Defendant has subjected them to numerous adverse employment actions based upon their race. Defendant contends that these actions, even if true, fail to establish a valid disparate treatment claim because they do not amount to actionable adverse actions.
An adverse employment action is "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." Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). Such an action might include "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities. . . ." Brown, 199 F.3d at 457. "While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action." Russell v. Pincipi, 257 F.3d 815, 818 (D.C. Cir. 2001). This means that "[m]ere idiosyncracies of personal preference" and other actions imposing purely subjective harms, such as dissatisfaction or disappointment, are insufficient to state an actionable injury. Brown, 199 F.3d at 457. See Stewart, 352 F.3d at 426 ("a bruised ego will not suffice to make an employment action adverse") (internal citation omitted).
In the instant case, Plaintiffs allege that they are micromanaged by their supervisor. In addition, Moncrief claims that he has never taken all of his vacation time and is not compensated for that unused time. Groves claims that she is not provided with a company cell phone and that she "was hired only to perform manual labor necessary to get the Sedgwick Gardens into shape and once the work was completed, she was replaced by a white male." Am. Compl. ¶ 89.
These actions do not affect Plaintiffs' salary or benefits, or improperly limit their advancement opportunities. Consequently, they simply fail to rise to the level of actionable adverse actions. See Stewart, 275 F.3d at 1134 (where there has been no "diminution of pay or benefits . . . [a]n employment decision does not rise to the level of an actionable adverse action . . . unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage.") (internal quotations and citations omitted).
Plaintiffs also claim that "Defendant has developed a two tier management level, one for African-Americans and one for Caucasians," and has "deliberately and wilfully prevented African-Americans from being a part of the top tier while African-Americans are kept at the bottom level." Am. Compl. ¶¶ 94, 95. Without more, this claim is far too vague and conclusory to rise to the level of an actionable adverse action.
Plaintiffs also allege that they are (1) required to attend various seminars and meetings but are not reimbursed for travel expenses; (2) not provided with a company car; and (3) required to purchase their own computers. These claims do rise to the level of actionable adverse actions because, if proven, they would affect Plaintiffs' salary and/or benefits.
Moncrief alleges that he has never been promoted. However, he admits that he never applied for any position that has been available at DARO during his 27-year tenure as an employee. Consequently, he cannot complain about Defendant's failure to promote him. See Lathram, 336 F.3d at 1089; Taylor, 350 F.3d at 1294 ("In order to make out a prima facie case of discriminatory refusal to promote . . . the plaintiff must show that she sought and was denied a promotion for which she was qualified, and that other employees of similar qualifications . . . were indeed promoted at the time the plaintiff's request for promotion was denied.") (internal quotation omitted).
Moncrief claims that he "was deprived of the opportunity to apply for any jobs. As Mt. [sic] Meit testified at his deposition, job openings were not posted and Mr. Moncrief, therefore was not aware that there was a job opening for a property manager in January 2003 when Stephen Philbin, a white man was hired to be a property manager." Pls.' Opp'n at 14. Contrary to Moncrief's assertion, however, Meit testified that DARO did advertise in the newspaper for the property manager position that Philbin was hired to fill. See Ex. 44 at 16.
Moncrief also alleges that he was never permitted to attend classes to become an accredited resident manager "although Mr. Philbin who had worked for DARO for only 9 months was recommended by Mr. Meit to attend the classes." Am. Compl. at 14-15. This claim also rises to the level of an actionable adverse action because it improperly limited his advancement opportunities.See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1436, n. 16 (11th Cir. 1998) (discriminatory access to training programs can form the basis of an actionable discrimination claim, but only when the programs are "related to the employee's job responsibilities or possibilities for advancement"), cited with approval in Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
Groves alleges that her transfer from Sedgewick Gardens/Tilden Hall to Cathedral Court constituted an adverse action because Cathedral Court was "a building in deplorable condition," Pls.' Opp'n at 17, she "lost her parking space, . . . and [she] went from managing several people on her staff to managing one maintenance person." Id. at 13-14. As Resident Manager of Sedgwick Gardens and Tilden Hall, Groves supervised five maintenance employees and eleven desk clerks. At Cathedral Court, she supervised only one employee. Defendant's reduction of Groves' supervisory responsibilities constitutes an actionable adverse action. See Stewart, 352 F.3d at 427 ("withdrawing an employee's supervisory duties constitutes an adverse employment action"); Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002) (same).
b. Plaintiffs have shown that the actionable adverse actions give rise to an inference of discrimination
As indicated above, in order to establish a prima facie case of discrimination, Plaintiffs must also show that the actionable adverse actions give rise to an inference of discrimination. Plaintiffs advance several arguments in an attempt to demonstrate that these actions were discriminatory, including that "William Lehan who is a member of management has already taken a three week vacation that Ms. Groves, ostensibly a member of management is not entitled to take. Mr. Moncrief continues to use his own vehicle to ferry himself among his buildings while other management staff members are provided with company cars. Presumably they are given a gas allowance while Mr. Moncrief bears all expenses himself." Pl.'s Opp'n at 15. In addition, Plaintiffs allege that "the Caucasian management members manage to convey to the African American employees that they are not as valuable as their Caucasian counterparts." Id. at 16. These facts are sufficient to give rise to an inference of discrimination.
Groves advances several arguments in an attempt to demonstrate that her transfer was discriminatory, including that she was transferred despite having been "congratulated" in January 2003 "for doing a good job in both buildings because both were 97% rented." Id. at 17. She contends that she was replaced by Philbin, "a white male who [wa]s not required to live on the premises" and who earned a salary "far in excess of Ms. Groves."Id. She also claims that Philbin was allowed to hire more maintenance staff and did not have to work on weekends. See Ex. 42, No. 1. These facts are also sufficient to give rise to an inference of discrimination.
Thus, Plaintiffs have established a prima facie case of discrimination.
Defendant argues that Plaintiffs have failed to make aprima facie showing because they have failed to identify a similarly situated employee. This argument is without merit, however, because, in order to make out a prima facie case, "a plaintiff in a [§ 1981] case is not required to show that she was disadvantaged in favor of a person outside of the protected class." Teneyck, 365 F.3d at 1150.
3. Defendant has offered legitimate, nondiscriminatory reasons for its unfavorable treatment of Plaintiffs in certain instances and failed to in others
Since Plaintiffs have made their required prima facie showing, Defendant must offer legitimate, nondiscriminatory reasons for their unfavorable treatment.
In the instant case, Defendant asserts that "DARO's practice has been to provide company vehicles to a few senior employees, including an African-American employee, whose responsibility involves travel to all 13 of its properties. DARO's Resident Managers, including the Plaintiffs, are responsible for particular properties, not for the entire portfolio and they are not required to travel to all 13 properties. DARO does not provide company cars to its Resident Managers, regardless of race." Def.'s Mot. at 28. Defendant has thus articulated a clear and reasonably specific factual basis upon which it based its denial of company cars to Plaintiffs. It has, therefore, carried its burden of articulating a `legitimate, nondiscriminatory reason' for its failure to provide Plaintiffs with a company car.See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981) (employer "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."); Teneyck, 365 F.3d at 1151 ("The employer's burden is one of production, not persuasion.").
Since Defendant has satisfied its burden, Plaintiffs must provide evidence that would permit a reasonable jury to conclude that they were not provided with a company car for a discriminatory reason. Since Plaintiffs, in their Opposition, have failed to dispute any of the facts on which Defendant relies to support its decision, they have failed to provide any evidence that would permit a reasonable jury to conclude that they were denied a company car for a discriminatory reason. See Waterhouse, 298 F.3d at 995 ("Because [Plaintiff] did not contravene — and in fact admitted — many of the deficiencies the defendants cited concerning her performance, she failed to establish that her employer's proffered explanation [was] unworthy of credence.") (internal quotation omitted).
Defendant also asserts that "[t]he decision to transfer Ms. Groves from Sedgwick Gardens and Tilden Hall to Cathedral Court was based upon legitimate [and previously documented] reasons, including the decline in economic occupancy rates, complaints from tenants about Ms. Groves and [the] understanding that she was not regularly visiting Tilden Hall due to her limited mobility." Meit Decl. ¶ 13. See Ex. 30 at 1 (October 3, 2003 memorandum to Groves from Meit citing Groves' "significant problems satisfactorily performing her duties"). Defendant has thus articulated a clear and reasonably specific factual basis upon which it based its decision to transfer Groves. It has, therefore, carried its burden of articulating a `legitimate, nondiscriminatory reason' for Groves' transfer. See Texas Dep't of Community Affairs, 450 U.S. at 254-55.
Since Defendant has satisfied its burden, Groves must provide evidence that would permit a reasonable jury to conclude that she was transferred for a discriminatory reason. In her Opposition, Groves has failed to dispute any of the facts on which Defendant relies to support the transfer decision. Indeed, she openly admits that her physical ailment limited her ability to walk back and forth between Sedgwick Gardens and Tilden Hall. See Ex. 5 at 38-39. Groves has, therefore, failed to provide any evidence that would permit a reasonable jury to conclude that she was transferred for a discriminatory reason. See Waterhouse, 298 F.3d at 995.
Defendant offers no legitimate nondiscriminatory reasons for why it required Plaintiffs to attend various seminars and meetings without reimbursing them for their travel expenses, required Plaintiffs to purchase their own computers, and refused to allow Moncrief to attend classes to become an accredited resident manager. Defendant has, therefore, failed to carry its burden of articulating a `legitimate, nondiscriminatory reason' for these adverse actions.
IV. CONCLUSION
For the reasons stated, Defendant's Motion for Summary Judgment is granted in part and denied in part.
An Order will issue with this opinion.