Opinion
Civil Action No. 98-11729-LPC.
May 30, 2001.
JUDGMENT
The above-entitled case having been referred to this court for all proceedings, including trial and entry of judgment, with the consent of the parties and consistent with the provisions of 28 U.S.C. § 636(c) and Rule 4 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, for the reasons set forth in the Memorandum and Order on Defendant's Motion for Summary Judgment entered contemporaneously herewith, on plaintiff's Amended Complaint, judgment in favor of the Defendant Rodney Slater, Secretary, Department of Transportation, and against plaintiff. Deborah Stanley, on all claims set forth in that Amended Complaint.
Costs are awarded to the defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The above-entitled case was referred to this court for all proceedings, including trial and entry of judgment, with the consent of the parties and consistent with the provisions of 28 U.S.C. § 636(c) and Rule 4 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts.
In a prolix Amended Complaint, punctuated by an even more confusing opposition to defendant's motion for summary judgment, plaintiff essentially contends that, on some five different occasions, the defendant discriminated against her in terms of her employment on account of her protected activity in violation of Title VII. She further contends that she was denied equal pay under the Federal Equal Pay Act. Defendant has moved for summary judgment as to all claims. On the retaliation claims brought under Title VII, defendant moves for summary judgment — essentially on two grounds: (1) that plaintiff, based on the undisputed and material facts, has not established a prima facie showing that whatever adverse employment decisions were issued against her were "causally connected" to protected activity within the meaning of
Section 2000e-3(a) of Title 42 provides:
§ 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Section 206(d)(1) provides:
(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 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, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
The above-entitled case was referred to this court for all proceedings, including trial and entry of judgment, with the consent of the parties and consistent with the provisions of 28 U.S.C. § 636(c) and Rule 4 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts.
42 U.S.C. § 2000e-3(a);and (2) that plaintiff, again on the basis of the undisputed material facts, has not established — at least as to some of the counts in her Amended Complaint — that the actions taken against the defendant, even if "causally connected" to protected activity, were "adverse employment actions" within the meaning of 42 U.S.C. § 2000e-3(a). On the Equal Pay Act claim, defendant contends (1) that any claims under the Equal Pay Act relating to a time prior to February 1992 are time barred, and (2) that any disparity of pay after February 1992 was properly based on an exemption in the Equal Pay Act — that is, that the disparity was the result of a bona fide "a merit system" system within the meaning of that Act, and not because of sex.
A. The Summary Judgment Standard
"Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
To survive a motion for summary judgment, the opposing party must demonstrate that there is a genuine issue of material fact requiring a trial. Fed.R.Civ.P., 56(e); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). As the Supreme Court recently has made clear, the standard for granting summary judgment "mirrors" the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). That is, the inquiry focuses on "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." Id. at 251-52. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
A plaintiff may not obtain a trial merely on the allegations in its complaint, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-290 (1968), or by showing that there is "some metaphysical doubt as to the material facts," Matsushita, supra, 475 U.S. at 586 (citations omitted). Where the non-moving party will bear the burden of proof at trial, Rule 56(c) mandates the entry of summary judgment against that party where it "fails to make a showing sufficient to establish the existence of an element essential to that party's case. . . ." Celotex Corp. v. Catrett, 477 U.S. at 322. That is to say, to avoid summary judgment, the opposing party ". . .must produce at least some evidence reasonably affording an inference supporting the existence of a triable issue of fact [with respect to the element which the opposing party must establish at trial]." Santiago, et al. v. Group Brasil, Inc., 830 F.2d 413, 416 (1st Cir. 1987).
This court's analysis of the varying claims brought forth by the plaintiff does not track the counts of the Amended Complaint in the same order as proffered by the plaintiff. Rather, given the sometimes overlapping claims, this court addresses the matters raised in chronological order.
In her Amended Complaint (Count 3 — ¶¶ 30-34), plaintiff simply alleges that she "believes" that she was paid less than similarly situated male personnel managers in violation of the Equal Pay Act. She further alleges that she ". . .applied for an upgrade in her position from 'UA6' to 'UA8' but has been willfully denied based on her gender, and in further retaliation for her activities as described above." On account of that, plaintiff seeks "back pay for three (3) years from the date of this complaint."
Throughout her Amended Complaint and other filings, plaintiff consistently referred to the provisions of 29 U.S.C. § 21b(b). We assume that she meant § 206(d)(1) of Title 29.
The Amended Complaint is silent as to when she was denied that upgrade. From all that appears in her opposition to the motion for summary judgment, as amplified at oral argument, however, it appears that the plaintiff's complaint refers to the 1990-1991 time frame.
To the extent that she refers to "further retaliation for her activities as described above[.]" under her Equal Pay Claim (Count 3), all of those activities occurred after the 1990-1991 time frame.
The date on the Amended Complaint is July 22, 1999. The original complaint, however, which also included the Equal Pay Claim, was filed on August 18, 1998.
1. Equal Pay Claims relating to the years prior to August 18, 1995: In the circumstances, this court finds and concludes that claims brought under the Equal Pay Act relating to an alleged disparity in pay prior to August 18, 1995, are time barred.
The statute of limitations was pleaded as an affirmative defense by the defendant. Given plaintiff's Amended Complaint, however, which, by its very terms, limited her Equal Pay Act claims to ". . .three (3) years from the date of this complaint[.]", defendant did not address, in its motion for summary judgment, any claims made prior to June 22, 1996. Instead, defendant focused on the exemption set forth in the Equal Pay Act relating to pay disparity based on a "merit system."
In response to that motion for summary judgment, plaintiff, for the first time, indicated that her Equal Pay Act claim related to an alleged disparity in 1990 and 1991, stating (Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (# 35, p. 25)):
Ms. Stanley's Equal Pay Act claim asserted in Count III of her Amended Complaint is also misstated by defendant's Motion [for Summary Judgment]. Her claim relates to the improper classification of her position as "UA6," whereas [Richard] Priotte was a "UA8" for the same position with the same job duties. . .
Section 255 of Title 29 provides in pertinent part:
Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [ 29 U.S.C.A. § 201 et seq.], the Walsh-Healey Act [ 41 U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C.A. § 276a et seq.] —
(a) if the cause of action accrues on or after May 14, 1947 — may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued;(Emphasis added).
In this case, plaintiff first asserted her Equal Pay Claim in her original complaint filed on August 18, 1998. Even assuming that the conduct was "willful", any claim under the Equal Pay Act for an alleged disparity prior to August 18, 1995 is, as set forth by the very terms of the statute, "forever barred." Indeed, plaintiff offers no authority to the contrary.
Plaintiff has not suggested that pay disparity prior to August 18, 1995, may be addressed on the sort of "continuing violation" theory discussed in Gandy v. Sullivan County, Tenn., 24 F.3d 861, 863-65 (6th Cir. 1994), and similar cases. Nor can she do so, since to prevail on a "continuing violation" theory, the plaintiff must establish a forbidden discriminatory act with the relevant statute of limitations period. As the Court in Gandy held (Id. at 864):
Under the Equal Pay Act, a plaintiff's action will not be time-barred as long as at least one forbidden discriminatory act occurs within the relevant limitations period. (Emphasis added). And for the reasons set forth below, plaintiff has not alleged a forbidden discriminatory act after August 18, 1995.
2. Equal Pay Act claims subsequent to August 18, 1995: To the extent that plaintiff contends that the defendant violated the Equal Pay Act in terms of her pay after August 18, 1995, this court finds the following material facts to be undisputed:
(a) Prior to February 1992, pay was based on a Universal Annual classification system. That system did not allow a pay differential based on merit;
(b)In February 1992, job classifications were changed to the "NF" system, which allowed pay increases based on merit;
(c) After the change to the "NF" position, allowing salaries to be adjusted on the basis of merit, plaintiff, at some undefined time, apparently received $2,000 less in annual salary than one of her male counterparts, Richard Proiette;
(d) Under the "NF" classification, employees who receive a rating of "excellent" or "outstanding" during their annual performance evaluations will generally receive a merit-based increase to their salary which is greater than increases given to employees who are rated "satisfactory";
(e) After the change to the "NF" classification system, Proiette was historically given "outstanding" performance evaluations on a yearly basis, and, on account of that, ". . .received annual salary increases of approximately five percent." Plaintiff, on the other hand, typically received "satisfactory" performance evaluations, and, hence, lower annual increases.
Plaintiff's Affidavit, ¶ 5, attached as Tab 11 to the Appendix to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37).
Plaintiff's Affidavit, ¶ 6, attached as Tab 11 to the Appendix to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37).
Nothing in her submissions in opposition to the motion for summary judgment, factual or otherwise, indicates (with the exception of the period 1990-1992) what male employees she claims received greater pay than her for the same duties, or when that may have occurred. There is, indeed, nothing in the record (at least to the extent referred to by plaintiff in her submissions) which shows that any male counterpart performing equal duties received greater pay than she did after August 18, 1995.
In this case, however, in the Affidavit of Richard Proiette (Tab 53 of the Appendix to Defendant's Motion for Summary Judgment (# 31)), Proiette avers that "at some time during [plaintiff's] tenure as Personnel Assistant[,]" his pay exceeded that of the plaintiff by some $2,000. Plaintiff, for whatever reason, has not chosen to establish by any submission that that disparity was in existence after August 18, 1995. Nevertheless, for purposes of the motion for summary judgment, this court will assume that the $2,000 disparity was present after August 18, 1995.
Both plaintiff and Proiette held "NF 3" classifications as civilian Personnel Assistants.
Affidavit of Richard Proiette (Tab 53 of the Appendix to Defendant's Motion for Summary Judgment (# 31, ¶ 5)).
Affidavit of Richard Proiette (Tab 53 of the Appendix to Defendant's Motion for Summary Judgment (# 31, ¶ 6)).
Based on these undisputed material facts, it is clear that defendant is entitled to judgment as a matter of law to the extent that plaintiff brings a claim under the Equal Pay Act for any alleged disparity between her and Proiette after August 18, 1995.
The only male counterpart to whom she refers in all of her pleadings.
Under the Equal Pay Act, once the plaintiff has established a prima facie case — i.e., that her employer paid different wage rates to employees of the opposite sex for equal work on jobs that require equal skill, effort and responsibility, and that were performed under similar working conditions, Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (which this court assumes for the purposes of this motion for summary judgment, but see n. 12, 23, supra) — the burden then shifts to the employer to show that a statutory exemption applies. As stated in Mazella v. RCA Global Communications, Inc., 642 F. Supp. 1531, 1551 (S.D.N.Y. 1986):
The Equal Pay Act prohibits employers from paying higher wages to men than to women for the performance of "equal work, . . . except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1) (1982). In order to establish a prima facie case of an Equal Pay Act violation, a female plaintiff must demonstrate that (i) she was compensated at a lower rate than a male employed in the same establishment (ii) for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). If the plaintiff establishes a prima facie case, the burden of proof shifts to the employer to establish by a preponderance of the evidence that the wage differential is justified under one of the Equal Pay Act's four exceptions. Id. 417 U.S. at 196-97, 94 S.Ct. at 2229. Any of the four exceptions, if established, is a complete defense to conduct that would otherwise violate the statute. 29 U.S.C. § 206(d)(1) (1982). (Emphasis added).
In this case, the defendant has clearly established that, since February 1992, pay was based on a "merit system" — one of the four exceptions specifically referred to in Section 206(d)(1) — and plaintiff does not dispute the fact. And it is also clear beyond dispute that to the extent that there was any disparity of pay between that received by plaintiff and that received by Proiette — if any there be, see n. 12, 23 above — that disparity was based solely on the fact that since 1992, Proiette consistently received annual performance evaluations of "outstanding", where plaintiff received annual performance evaluations of "satisfactory." The undisputed material facts show beyond peradventure that any disparity of pay which may have existed between that received by Proiette and that received by plaintiff after August 18, 1995, was justified on the basis of merit, and was totally consistent with the provisions of the Equal Pay Act.
Indeed, she admits as much. Plaintiff's Affidavit, ¶ 5, attached as Tab 11 to the Appendix to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37).
In her written opposition to defendant's motion for summary judgment (Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (# 35)), plaintiff simply says with respect to pay differentials which may have existed after February 1992 (Id. at p. 25) —
As to whether Mr. Prioette [sic] was entitled to more pay based on his comparative performance as "outstanding" relative to Ms. Stanley's evaluations of "satisfactory" to "excellent", plaintiff would call upon defendant to produce the relevant evaluations.
For one thing, however, there is not a single showing that plaintiff, during the relevant time period (after August 18, 1995), received an "excellent" rating as casually suggested by counsel for the plaintiff in that Memorandum in Opposition. To the contrary, Proiette, in his affidavit, averred that plaintiff typically received evaluations of "satisfactory", and plaintiff has offered no facts to the contrary.
For another, to the extent plaintiff simply says that "plaintiff would call upon defendant to produce the relevant evaluations[,]" the fact of the matter is that defendant did offer relevant and admissible evidence, none of which has been materially disputed by the plaintiff. As indicated above, Proiette, in his affidavit, specifically averred that he received annual increases in his salary of approximately five percent because of his "outstanding" performance evaluations, whereas plaintiff typically received increases in a less amount on account of her "satisfactory" performance evaluations.
At oral argument, however, counsel for plaintiff, for the first time, suggested that that which was averred was "disputed." In support of that, counsel for plaintiff referred to plaintiff's affidavit (Tab 11 to the Appendix to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37, ¶ 6) in which plaintiff averred:
I do not believe that Mr. Prioette [sic] was consistently rated as "outstanding" because he complained to me about his evaluation in 1995 or 1996. (Emphasis added).
That mere belief, however, does not create a disputed material fact. See e.g., Cadle v. Hayes, 116 F.3d 957, 961 (1st Cir. 1997); Griggs-Ryan v. Smith, 904 F.2d 112, 117-118 (1st Cir. 1990). Even assuming that Proiette complained to plaintiff about one evaluation he had received in "1995 or 1996", it does not dispute the fact that Proiette received "outstanding" performance evaluations since the introduction of the "NF" classification system in February 1992, all of which warranted greater increases in pay each year since February 1992 than those received by plaintiff who received "satisfactory" evaluations.
Accordingly, for the reasons set forth above, judgment shall enter against the plaintiff and for the defendant on all claims brought under the Equal Pay Act as set forth in the Amended Complaint.
C. Retaliation — 1990 through 1993
Most of plaintiff's claims in her amended complaint, to the extent that those claims allege "retaliation" in violation of the provisions of Section 2000e-3(a) of Title 42, are predicated, in part, on the fact that she filed a complaint with the Equal Employment Opportunity Commission on June 16, 1993. In Paragraph 6 of her Amended Complaint, however, as part of the "Statement of the Case", plaintiff alleged:
Commencing in 1990 and continuing through 1993 the Plaintiff was subjected to adverse employment actions (reprimands, abusive language, a suspension and other negative behavior) initiated by Ms. Stanley's immediate supervisor, Stephen Hammond, and her Deputy Executive Officer. . .CDR Comer.
Neither the original nor the amended complaints were verified.
It is not clear why, in this paragraph, plaintiff refers to Commander Comer, since, by her own admission (Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37, ¶ 8), Comer did not come "on board" until July 1994.
Insofar as this court can determine, however, given the helter-skelter order of Counts set forth in the Amended Complaint, this factual basis does not form the basis of any of the Counts seeking relief.
Grammatically and otherwise, all of the "retaliation" counts [Counts 1, 2, 4, and 5] appear to claim that adverse actions were taken by the defendant on account of the filing of numerous EEO Complaints. Count 1 referred to a "prior series of EEO Complaints." Count 2 specifically refers to the filing of her first EEO complaint on June 16, 1993. Count 4, although it refers to some matters occurring between 1990 and May of 1993, does not suggest that those matters occurred in terms of "retaliation" for any "protected activity"; indeed, in her opposition to defendant's motion for summary judgment (Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37, p. 9, note 1)), plaintiff specifically says that Count 4 relates to an office move in November 1997. And Count 5 is specifically limited to matters occurring in and after 1998.
In her opposition to defendant's motion for summary judgment, however, plaintiff seemingly suggests that plaintiff's immediate supervisor, Stephen Hammond, discriminated against her as "retaliation" for engaging in protected activity.
In its motion for summary judgment, defendant did not address the matter of "retaliation" in the context of the 1990-1993 time frame, and understandably so, since nothing in plaintiff's ill-framed complaint readily (or not so readily) indicated that the plaintiff, as a separate cause of action, claimed that conduct occurred during the 1990-1993 time frame constituted "retaliation" for "protected activities."
And also, for that very same reason, defendant did not, in its motion for summary judgment, raise a statute of limitations argument — an affirmative defense specifically pleaded. See also note 8 above. But a statute of limitations argument would likewise be fatal to any retaliation claim brought in the 1990-1993 time frame.
Normally, a retaliation claim under Title VII must be brought within 90 days of the issuance of a right to sue letter by the EEOC or, as is the case here, within 90 days that a complainant voluntarily terminates the proceedings before the EEOC.
According to Paragraph 11 of the Amended Complaint, plaintiff dismissed her June 1993 claim before the EEOC in December of 1997. The original complaint in this case was not filed until August 18, 1998 — clearly more than 90 days after she voluntarily terminated those proceedings before the EEOC.
And plaintiff would not be helped with respect to the matters allegedly occurring in the 1990-1993 time frame by the so-called "continuing violation" exception to the running of the statute of limitations.
As was stated in Jones v. WDAS Fm/am Radio Stations, 74 F. Supp.2d 455, 462-63 (E.D.Pa. 1999):
The continuing violation doctrine "is premised on the equitable notion that the statue of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated." Hicks v. Big Brothers/Big Sisters of America, 944 F. Supp. 405, 407 (E.D.Pa. 1996) (citing Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 n. 6 (10th Cir. 1993)). "A plaintiff 'may not base her . . . suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct.' " Rush, 113 F.3d at 481 (quoting Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996)).
That is full consistent with precedent in this Circuit (Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 612 (1st Cir. 2000):
No continuing violation can be found where the plaintiff was aware of the alleged discrimination outside of the time for filing a charge:
Even where a plaintiff alleges a violation within the appropriate statute of limitations period, the continuing violation claim will fail if the plaintiff was or should have been aware that he was being unlawfully discriminated against while the earlier acts, now untimely, were taking place.
Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998). (Emphasis added).
This is clearly not a case where plaintiff, in June 1993, was unaware that her rights were being violated. To the contrary, she specifically alleged as much in her first filing with the EEOC on June 1993, and added (in that filing) that she intended to secure counsel as well in connection with her claims.
Under settled law in this Circuit (King v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997)), in order to prevail on a "retaliation" claim —
. .the plaintiff must show (1) that he engaged in an activity protected under Title VII or engaged in protected opposition to an activity, which participation or opposition was known by the employer; (2) one or more employment actions disadvantaging him; and (3) a causal connection between the protected activity and the employment action. See Hoeppner v. Crotched Mountain Rehabilitation Center, 31 F.3d 9, 14 (1st Cir. 1994); Petitti v. New England Tel. Tel. Co., 909 F.2d 28, 33 (1st Cir. 1990).
Insofar as plaintiff contends that the defendant, by and through its agents, took employment actions disadvantaging her between 1990 and 1993, as retaliation, plaintiff fails at the first prong of the test, since — apart from fiction spun from whole cloth — there is not a scintilla of evidence [as opposed to mere unsupported assertions by counsel in opposition to the motion for summary judgment] which shows that she engaged in, or was engaged in, "protected activity."
In her Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37, ¶ 4), plaintiff inaccurately says:
In January, 1991, Ms. Stanley raised with her supervisor, Mr. Hammond, her concern that her job position was classified at a lower grade (and therefore lower pay) than a male counterpart who was doing the same job. She specifically told Mr. Hammond that she believed that the pay discrepancy was based on her gender, and asked Mr. Hammond to look into getting back-pay retroactively, since her position had been upgraded around the time Hammond came on board. (See Hammond deposition, Pl.App. #4).
It is inaccurate for the reasons that nothing in the factual submissions of the plaintiff in opposition to the motion for summary judgment and/or her reference to the Hammond deposition indicates that plaintiff ". . .raised with her supervisor, Mr. Hammond, her concern that her job position was classified at a lower grade (and therefore lower pay) than a male counterpart who was doing the same job[,]" or that plaintiff ". . .specifically told Mr. Hammond that she believed that the pay discrepancy was based on her gender." To the contrary, the Hammond deposition to which plaintiff refers shows only that the plaintiff, upon receiving an upgrade from UA6 to UA7, told Hammond [just after Hammond was employed as plaintiff's supervisor]
". . .that she wanted her back pay for two years because that's when her job was supposedly changed by the, the Personnel in charge of Coast Guard Personnel System when they do promotions or gradings for job performance, job duties."
I told her that I didn't think that I could do that. I couldn't give her back pay for two years. I think that was my, I didn't know if I could do was basically what I said. I just didn't know.
She told me that if she didn't get her back pay, that there would be two people in this office that would claim sexual harassment and discrimination against me if I did not do that. (Emphasis added).
Nothing in that affidavit supports any inference whatsoever that plaintiff ". . .raised with her supervisor, Mr. Hammond, her concern that her job position was classified at a lower grade (and therefore lower pay) than a male counterpart who was doing the same job[,]" or that plaintiff ". . .specifically told Mr. Hammond that she believed that the pay discrepancy was based on her gender." That is a fiction spun from whole cloth.
To be sure, plaintiff did say that she and another would make charges of sexual harassment and discrimination if she was not given back pay for two years. But that threat, if you will, was not related to any assertion that she was being denied equal pay for equal work. The threat was made in the context of demanding that her recent upgrade be made retroactive for two years.
Her intentions notwithstanding, Hammond took it upon himself, consistent with his earlier training, to report the "sexual harassment and discrimination" claim to the command structure, and the command structure, in turn, contacted EEO. EEO, in turn, indicated that they would interview the plaintiff on that matter the following Monday morning. When informed of this by Hammond, plaintiff said that "She did not want that."
Indeed, in the very same portion of plaintiff's appendix to which she refers in connection with the Hammond deposition (Tab 4 to the Appendix to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (# 37)), plaintiff specifically testified [at her own deposition] and specifically disclaimed filing — formally or informally — any claims of discrimination against Hammond or any other managers, and specifically disclaimed making any "informal verbal complaints" to anyone about discrimination at the time now suggested by counsel for the plaintiff.
Together with this total lack of factual support, plaintiff misses the mark on the matter of "protected activity." If, as she now seems to contend, the alleged "protected activity", the only "protected activity" to which she possibly refers is some sort of protected activity under the terms of the Equal Pay Act.
Since she now contends — without factual support — that she engaged in "protected activity" by "rais[ing] with her supervisor, Mr. Hammond, her concern that her job position was classified at a lower grade (and therefore lower pay) than a male counterpart who was doing the same job. . ." and by ". . .specifically [telling] Mr. Hammond that she believed that the pay discrepancy was based on her gender", it must be that plaintiff (although it is surely not clear from the terms of her Amended Complaint or her opposition to the motion for summary judgment) is contending that the retaliation was on account of her exercising her rights under the Equal Pay Act.
Retaliation under the Equal Pay Act is governed by 29 U.S.C. § 215 (a)(3) — not, as argued by plaintiff, Section 2000e-3(a) of Title 42. Section 215(a)(3) provides:
[I]t shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.] (Emphasis added).
Although it is now settled in this Circuit that the filing referred to in Section 215(a)(3) is not limited to formal filings with an administrative or judicial agency, Valerio v. Putnam Associates Incorporated, 173 F.3d 35 (1st Cir. 1999), it clearly means, in this court's view, something far more than that shown by the plaintiff in this case.
At the very least, the sort of "filing" contemplated by Section 215(a)(3) requires an ". . .internal complaint made to a private employer with the expectation that the employer will place it on file with the employer's official records." Valerio, supra, at 41-42. And the sort of internal complaint contemplated by Section 215(a)(3) and the Valerio rationale means something that would, at the very least, put the employer on some sort of fair notice that the employee was of the view that the actions of the defendant violated the provisions of the Equal Pay Act. That is not the case here. At most, plaintiff has shown that, during the course of a conversation with Hammond relating to back-pay in connection with an upgrade in her position — wholly unrelated to a matter of equal pay for equal work — she said that she [and another] would make charges of sexual harassment and discrimination if she was not given back pay for two years. Plaintiff has simply failed to make out a case that, prior to June of 1993, she was engaged in "protected activity" within the meaning of Section 215(a)(3). Having failed to make that threshold showing, any claims of "retaliation" for the period of 1990 through June of 1993 fail to pass the first prong of the requirements of a retaliation claim as set forth in King v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997), and judgment is entered in favor of the defendant and against the plaintiff on any and all claims that the defendant engaged in "retaliation" during the period 1990 through June 1993.
In Valerio, the Court observed (Id. at 44):
Of course, not all abstract grumblings will suffice to constitute the filing of a complaint with one's employer. As the Clean Harbors panel acknowledged, affording protection to employees who lodge purely intracorporate complaints "unhelpfully leaves employers in the dark" as to what types of assertions will rise to the level of protected activity by their employees. Clean Harbors, 146 F.3d at 21. We agree that "[t]here is a point at which an employee's concerns and comments are too generalized and informal to constitute 'complaints' that are 'filed' with an employer within the meaning of the [statute.]" Id. at 22. Even putting oral complaints aside, as we do in this case, see note 4, supra, written comments and criticisms made to an employer may not always amount to filed complaints "under or related to this chapter." 29 U.S.C. § 215(a)(3). (Emphasis added).
And although the Valerio Court found in that case that the employee had filed a "sufficient complaint" with the employer (Id.), it did so because, in that case (Id., at 45) —
. .Valerio's September 12, 1995 letter was sufficiently definite to notify Putnam that she was asserting her statutory rights to overtime pay. She wrote to Lisa Patterson, who was her direct supervisor and Putnam's Office Manager, that, at least as long as she was required to be a receptionist, she was misclassified as exempt under the FLSA, and was entitled to overtime pay. While Valerio seems also to have indicated a preference to remain as a Research Associate and perhaps therefore an exempt employee (foregoing the receptionist label), she stated she was "considering complaint options and have contacted the Department of Labor." She quoted the relevant statutory language regarding her claim and threatened legal action if retaliation took place. (Emphasis added).
As indicated above, note 12, 23, plaintiff, in her own deposition, specifically disclaimed filing any formal or informal complaints, and specifically disclaimed making any "informal verbal complaints" to anyone, at the time of her conversation with Hammond as referred to in the Amended Complaint. Indeed, despite the fact that she now insists that she never reached pay parity with her male counterpart, Proiette, she never asserted any claim that she was denied equal pay for equal work until she filed her original complaint in this court in 1998.
D. Retaliation — October 1994
On June 16, 1993, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging sexual discrimination on the part of Hammond and others. More than a year and a quarter later, in September 1994, the EEOC sent plaintiff some sort of scheduling notice. On October 3, 1994, Lori B. Allen, an Administrative Assistant, reported to an Executive Officer, Commander T. Gordon, that plaintiff had a meeting with Hammond starting at approximately 8:00 a.m., September 27, 1994. The purpose of that meeting was to discuss complaints lodged by other employees to the effect that because of payroll discrepancies caused by the plaintiff, they had not received pay raises to which they were entitled. During the course of this meeting, and for some two hours thereafter, according to the report filed by Ms. Allen, plaintiff engaged in loud and abusive conduct, laced with profanity, which permeated the entire building, causing a disruption in the work force. On the following day, September 28, 1994, Hammond tasked plaintiff with the responsibility of auditing the time cards of some sixteen employees to determine if pay raises were due to those employees. She was reluctant to do so, but then agreed to complete the task by October 5, 1994. On October 5, 1994, Hammond asked plaintiff for her report on that assignment, but it was not complete. At this time, she yelled at Hammond, "you don't have the authority", "you have no right to question my overtime", and "you're on a witch hunt", and then denied having been tasked with that audit in the first place. Hammond then offered plaintiff an extension of time to October 7, 1994. Plaintiff completed the task around noon time the following day.
Insofar as the record shows, she did not file any sort of internal complaint with her employer. Nor is there anything in the record to show that her supervisors were aware of the precise nature of her allegations in that EEOC filing.
At the time this EEOC complaint was filed, Hammond was aware of the fact that a complaint had been filed. He never heard anything further about the matter, and, in October of 1994, thought that the matter had been "dropped". Hammond Deposition (Tab 4 of the Appendix to Defendant's Motion for Summary Judgment (# 31)).
None of her complaints, however, related to Commander Comer, referred to below in the text, who was Hammond's supervisor and plaintiff's second line supervisor in October of 1994. Commander Comer was not even present at plaintiff's place of employment until sometime in July of 1994. See note 20 above.
There is absolutely no evidence whatsoever showing that this letter was sent to — or seen by — any of plaintiff's supervisors.
Among other things, according to Ms. Allen, and a report made by Hammond, during the course of this tirade plaintiff was heard to say "I'll quit before I look this shit [the payroll information] up[,]" and was also heard to say to outside visitors that one of those complaining about her payroll discrepancies ". . .is nothing but a useless son-of-a-bitch."
He also offered to provide plaintiff with additional manpower if needed to complete the task.
The audit which plaintiff did prepare confirmed that the payroll records which she did maintain were inaccurate in certain respects.
Based on these reports, all of which were made available to Commander Comer (Tab 44 of the Appendix to Defendant's Motion for Summary Judgment (# 31)), Commander Comer, on October 6, 1994, issued a five day suspension to the plaintiff for shouting insulting, abusive and obscene language. On October 11, 1994, Commander Comer issued yet another five day suspension to the plaintiff — this one based on the fact that plaintiff did not complete the payroll assignment given to her by Hammond on or before October 5, as required, and because she again was "disrespectful and verbally abusive" to Hammond.
Comer was Hammond's supervisor and plaintiff's second line supervisor.
Based on these two five day suspensions issued in October 1994, plaintiff contends in her Amended Complaint that these suspensions were issued in "retaliation" for the fact that, in June 1993, she had filed a complaint with the EEOC.
And she filed a second complaint with the EEOC — contending that the October suspensions were in retaliation for her filing the original EEOC complaint in June 1993.
Applying the test set forth in King v. Town of Andover, supra, plaintiff has satisfied the first prong of her burden (i.e., that she engaged in protected activity), and the second prong as well — i.e., adverse employment decisions. Nevertheless, she falls far short of establishing a prima facie showing of the third prong of that test — i.e., a showing of a causal connection between the protected activity and the employment action.
I.e., the filing of the EEOC complaint on June 16, 1993.
The two five day suspensions issued in October 1994.
It is not enough to make out a prima facie case simply to say that one has engaged in protected activity on the one hand, and that, some time later, an adverse employment decision was made on the other. In this case, the protected activity upon which she relies to fulfill the first prong of the King calculi occurred on June 16, 1993, when she filed her first complaint with the EEOC. The adverse employment action of which she complains, however, as to this aspect of the case, occurred in October 1994 approximately sixteen months thereafter. In this court's view, this time lapse of some sixteen months, by its very nature, dispels any fair inference that the employment action was taken in retaliation of plaintiff's filing of an EEOC complaint some sixteen months earlier. See e.g., Mesnick v. General Electric Co., 950 F.2d 816 (1st Cir. 1991) (nine month period between protected conduct and adverse action suggested an absence of causal connection for retaliatory conduct); Ramos v. Roche Products Inc., 936 F.2d 43 (1st Cir. 1991) (complaints of harassment and termination six years later not sufficient to establish causal connection); Oliver v. Digital Equipment Corp., 846 F.2d 103 (1st Cir 1988) (determined thirty three months, or two and a half years, was too long a time period to allow for an inference of retaliatory conduct).
To be sure, in September 1994, the EEOC sent plaintiff some sort of scheduling notice. But there is absolutely no evidence that Comer or anyone else in the command structure at defendant's place of employment received a copy of that letter, or was otherwise made known of the contents of that letter.
In her Memorandum in Opposition (# 35, p. 15), plaintiff takes undue liberty — if not sleight of hand — with the record in an attempt to establish that Commander Comer was aware of the fact that plaintiff's EEOC complaint had been assigned to a particular handler. First she says that Hammond and Comer, when they testified at their respective depositions that they had not received the EEOC scheduling notice which was received by plaintiff, were not credible. But plaintiff, beyond mere ipse dixit, does not say why they were not credible. And more to the point, plaintiff can point to nothing whatsoever in the record to satisfy her burden of showing that they had received that letter.
Secondly, she says that Commander Comer had notice of the filings of the EEOC cases on October 18 — evidenced by his own notes of October 18, 1994. But those notes (Tab 20B to her filings) say no such thing. It only shows that, on October 18, Commander Comer made notes concerning a number of matters, and referred to a prior EOC filing. And, in any event, even if those cryptic notes suggest that which plaintiff suggests, the suspensions occurred before October 18, 1994.
Thirdly, she says that Commander Comer became aware of an EEOC investigation on October 28, 1994. But that is, once again, beside the point, since that occurred after the suspensions.
Fourthly, she points to an unattested to statement by one Eunice Rockwood who allows that, on October 6, 1994, Commander Comer had told her [Rockwood] that there were investigators on the base. But there is nothing to suggest that those investigators had anything to do with discrimination complaints, much less discrimination complaints relating to the plaintiff.
And lastly, plaintiff, pointed again to certain notes of Commander Comer (Tab 17) made contemporaneous with her October 11 suspension hearing. In those notes, he explained the presence of one Ms. Marshall, indicating:
Ms. Marshal is a third-party observer. She will not divulge the contents of this session to anyone without my permission.
She will file a report with the Human Relations council if I say anything or conduct myself in any way that she construes as discriminatory, gender-insensitive or inappropriate.
Nothing there, short of unfettered imagination, comes close to suggesting that Commander Comer was aware of the EEO scheduling notice on October 11, 1994.
Moreover, even if it could be assumed that plaintiff has made a prima facie showing of the required causal connection, summary judgment in favor of the defendant would nevertheless be required.
As the United States Court of Appeals for this Circuit has observed (McMillan v. Massachusetts Society for the Prevention of Cruelty to Animals, 140 F.3d 288, 309 (1st Cir. 1998)):
To succeed on a retaliation claim under both state and federal law, when, as here, there is no direct evidence of retaliatory animus, a plaintiff must both establish a prima facie case and prove that the defendants' legitimate business reasons for terminating the plaintiff were pretextual. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996) (discussing Title VII's analytical framework); Lewis v. Gillette, Co., 22 F.3d 22, 24-25 (1st Cir. 1994) (observing that Massachusetts retaliation law parallels federal law). Specifically, to establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected conduct under federal or Massachusetts law; (2) she suffered an adverse employment action; and (3) a causal connection existed between the protected conduct and the adverse action. See Fennell, 83 F.3d at 535. Once the plaintiff has made a prima facie showing, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for its employment decision. See id. If the defendant does so, the plaintiff must show that the defendant's proffered reason was not, in fact, the real reason for the decision and that the decision was the result of the defendant's retaliatory animus. See id. (Emphasis added).
In this case, the defendant has proffered a legitimate, non-retaliatory reason for the employment action of which the plaintiff complains, that is, that the plaintiff engaged in loud and abusive conduct, laced with profanity, which permeated the entire building, causing a disruption in the work force, and she failed to complete an assigned task by the date it was due. This is not a case where Hammond, plaintiff's immediate supervisor, or Commander Comer, plaintiff's second line supervisor, initiated disciplinary action out of the blue and on their own. To the contrary, the undisputed evidence shows that investigation into the matter began when, and only when, another employee — having no supervision or other identifiable relationship with the plaintiff — filed a written complaint with Commander Comer complaining of plaintiff's undisputed loud and abusive conduct, laced with profanity, which permeated the entire building, causing a disruption in the work force, on September 27, 1994, and when plaintiff undisputedly failed to complete a tasked assignment on time. Given the length of time between the protected activity and the adverse employment decisions in 1994 (sixteen months), the fact that those disciplinary proceedings were premised on the reports of persons other than plaintiff's supervisors, the fact that the discipline was meted out by Commander Comer who had no prior dealings of any significance with the plaintiff, and the fact that the plaintiff has not seriously (if at all) disputed the basis for the discipline, plaintiff has not, and cannot, make any showing whatsoever that the reasons advanced by the defendant for imposing the disciplines in issue were pretextual. In short, plaintiff has not raised even an exciting suspicion that the disciplines were occasioned by protected activity on her part. There is, quite simply, no triable issue for the ultimate finder of fact, and, on the undisputed facts, defendant is entitled to summary judgment as to those claims in plaintiff's Amended Complaint which complain about the October 1994 suspensions.
The two five day suspensions.
Insofar as this court can determine from the record, plaintiff, herself, has never gainsaid the fact that she engaged in abusive conduct, laced with profanity, which permeated the entire building, causing a disruption in the work force, on September 27, 1994. When she filed her second complaint with the EEOC immediately following her suspensions, she made no claims that she did not do that alleged by the command. And this court's review of the numerous papers filed by the plaintiff in opposition to the motion does not include any admissible evidence in which plaintiff denies that she engaged in abusive conduct, laced with profanity, which permeated the entire building, causing a disruption in the work force, on September 27, 1994. The only matter on this subject appears in her memorandum in opposition (at pp. 16-17) to the motion for summary judgment where she says that ". . .the plaintiff has produced statements from two (2) individuals (Santo Cocapardo (now deceased) and Joy Zyceck) who have stated that Ms. Stanley was not as characterized on the morning in question." Those apparently unsworn statements, however, are not part of the record — at least insofar as this court can determine from all that has been filed by the plaintiff.
In an attempt to manufacture a material fact where none exists, plaintiff, saying (Memorandum in Opposition, p. 17) that "Ms. Rockwood has attested that Ms. Stanley completed the assignment as requested[,]", then says that the given reason was pretextual. But plaintiff misstates, again, the basis of the October 11 suspension. That suspension was based on the fact that the plaintiff had been tasked to complete a certain assignment by October 5, 1994. In truth and fact, she did not complete the task on or before October 5, 1994. Her assignment was completed the next day, and nothing that Ms. Rockwood says is to the contrary.
Her last arrow in the quiver concerning the October 1994 suspensions focuses on the nature of the suspension hearing on October 11, 1994. In her second complaint filed before the EEOC (after the suspensions had been imposed and served), she alleged, among other things, that she was required to stand, and was not allowed to present a defense. (Other witnesses, however, indicate that it was plaintiff who insisted on standing. But we assume, for purposes of the motion for summary judgment, that plaintiff was required to stand). But this is not a due process case — focusing on the processes to which plaintiff was due at that hearing. Even assuming that Commander Comer conducted the suspension hearing in a rather military (albeit that plaintiff was a civilian.
E. The November 1994 and August Performance Warnings
After having received complaints from other employees to the effect that they had not received timely pay increases, the Air Station's Commanding Officer directed an audit by Coast Guard auditors of alleged payroll discrepancies. The Coast Guard auditors, upon completion of that audit, reported that several employees had not received salary step increases to which they were entitled on account of payroll errors made by the plaintiff. On account of this, Commander Comer, on or about November 14 1994, issued plaintiff a "Warning of Unsatisfactory Performance".
This was before plaintiff filed her second EEOC complaint.
To the extent that plaintiff now contends that the issuance of this "Warning of Unsatisfactory Performance" constitutes unlawful retaliation for her filing of her first EEOC complaint in June 1993 — and it is not clear that she does so; she does not even discuss the matter as retaliatory in her Memorandum in Opposition — plaintiff, for the very same reasons set forth above, Part D, pp. 18-22, has not presented an issue for employee in an otherwise military setting), and wooden fashion, that, standing alone, or considered in combination with all that plaintiff has been able to muster in support of her claim, does not come any closer to raising any fair inference that the reason for the suspension was the filing of the first EEOC complaint some sixteen months earlier at a time when Commander Comer was not even present at plaintiff's place of employment. the jury, and defendant is entitled to summary judgment as to that claim — if that is, in fact, one of plaintiff's claims — as a matter of law based on the undisputed facts.
Indeed, in her Memorandum in Opposition (p. 18), she says that ". . .Ms. Stanley never complained about this action in her EEO complaints or in this lawsuit." But since her Amended Complaint appears to be more of a moving target in many respects, this court addresses the matter.
That is to say, in terms of a prima facie case, plaintiff's entire claim on this matter is that she once filed an EEOC complaint some eighteen months before this "Warning of Unsatisfactory Performance" was issued. In this court's view, however, a reasonable trier of fact would not be warranted from inferring from this that the reason for the issuance of that "Warning of Unsatisfactory Performance" was retaliation on account of having filed that EEOC complaint. Moreover, prima facie case to one side, in this case, the defendant has proffered a non-discriminatory reason for the issuance of that "Warning of Unsatisfactory Performance" — to wit, the conclusions of the audit conducted concerning the payroll discrepancies. Insofar as this court can determine, plaintiff has not even challenged the soundness of the auditors' report. Nor, again for the reasons set forth above, pp. 18-22, has she advanced anything — of substance or otherwise — suggesting that the non-discriminatory reason advanced by the defendant was or is pretextual. For the same reasons set forth above with respect to the October 1994 suspensions, defendant is entitled to judgment as a matter of law based on the undisputed facts on any claim that the issuance of the "Warning of Unsatisfactory Performance" was retaliatory.
On or about December 5, 1994, plaintiff filed her second EEOC complaint — this time alleging that her October 1994 suspensions were retaliatory. On or about February 7, 1995, plaintiff filed her third EEOC complaint. On August 7, 1995 — some eight months after the filling of plaintiff's second EEOC complaint, and some six months after the filing of plaintiff's third EEOC complaint, Coast Guard Lieutenant Commander Laura Guth completed an audit of the Official Personnel Folders maintained by the plaintiff for employees at the Air Station. The audit report concluded that a substantial number of those Folders were lacking required documentation, that adequate procedures to ensure the accuracy and completeness of the personnel folders were not in place, and that plaintiff failed to meet the requirements of her position with respect to the maintenance of these personnel folders. Based on that, Commander Comer, on August 16, 1995, issued plaintiff a second "Warning of Unsatisfactory Performance."
That allegation was rather conclusory, plaintiff saying: "I feel the sole purpose of the suspensions was reprisal due to my initial filings." (Emphasis added).
With respect to that original EEO Complaint, the agency issued a "Finding of no discrimination." Plaintiff's Amended Complaint, Paragraph 23. On appeal from that finding, the EEOC affirmed the decision of no discrimination.
This third complaint generally alleged that she had been moved to a smaller office and was not allowed to set up that office so that it could be functional, and that Commander Comer had "hurled false accusations" against her at a January 3, 1995, meeting. It is not clear that the Amended Complaint seeks relief as to these allegations.
Once again, to the extent that plaintiff contends that the issuance of this "Warning of Unsatisfactory Performance" was retaliatory — and it is not clear that she does so contend, since the matter is not even addressed in terms of retaliation in her Memorandum in Opposition — the plaintiff has not established even an exciting suspicion. The reason advanced by the defendant for this second "Warning of Unsatisfactory Performance" was and is clearly legitimate, and plaintiff does not dispute the fact — much less suggest that it was a pretext. Accordingly, defendant is entitled to judgment as a matter of law based on the undisputed facts on any claim that the issuance of this second "Warning of Unsatisfactory Performance" was retaliatory.
Indeed, in her Memorandum in Opposition (p. 18), she says that ". . .[Plaintiff] did complain about the August, 1995 Probation. .the gist of her complaint was not that it was given, but that, while she was on probation', no one ever checked on her work or her progress." (Emphasis added). But, once again, since her Amended Complaint appears to be more of a moving target in many respects, this court addresses the matter.
F. The November 1994 Office Move
In the factual portion of her Amended Complaint (# 21, Paragraph 9), plaintiff alleged that, at some specified time, she was moved to a smaller office. It is not clear, however, that that office move is subsumed within any of her Counts I through V. In her Memorandum in Opposition (# 35, p. 19), plaintiff makes reference to that change of office.
It certainly does not appear that that office move was the basis for any relief sought by the Amended Complaint.
To the extent that that office move is a basis for which plaintiff seeks relief, plaintiff has not shown on the basis of the undisputed material facts — and cannot show — that that office move is a basis for relief under Section 2000(e) of Title 42.
For one thing, plaintiff has not established, and cannot establish, based on the material undisputed facts, that the office move constituted an adverse employment action within the meaning of 42 U.S.C. § 2000 (e). As was stated in Galabya v. New York City Board of Education, 202 F.3d 636, (2d Cir. 2000):
A plaintiff sustains an adverse employment action if he or she endures a "materially adverse change" in the terms and conditions of employment. See Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999) (relying on Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). To be "materially adverse" a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady, 993 F.2d at 136. "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id.; see Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (ADEA protects the employee against "less flagrant reprisals" than termination or a reduction in wages and benefits).
(Emphasis added; footnote omitted).
In the circumstances, this court cannot fairly conclude that this move to the office about which plaintiff complains is the sort of "materially adverse change" in a condition of employment within the meaning of Title VII.
In response, plaintiff, in her Memorandum in Opposition (# 35, p. 19), purportedly relying on Simas v. First Citizens' Federal Credit Union, 170 F.3d 37 Cir. 1999), says: "Reassignment to a remote cubicle' has been referred to as the quintessential adverse condition' of employment. Simas, supra, at 8."
Simas, however, says no such thing. The passage to which plaintiff refers in Simas gives its understanding of the word "condition" — not adverse employment action. It is clearly inappropriate to refer to that passage, as has plaintiff, for the proposition that the relocation of an employee to a remote cubicle is the "quintessential adverse condition' of employment."
And even if that office move could be considered an adverse employment decision, for the same reasons set forth above, plaintiff cannot show that that office was "retaliatory." As defendant has acknowledged (Memorandum in Opposition (# 35, p. 19)), the defendant proffered a legitimate business reason for that move, to wit: that the plaintiff ". . .be more accessible' and customer friendly', wanted [plaintiff] in an office with a window, and wanted her to leave her door open." For the same reasons that plaintiff cannot show that the actions of Commander Comer in issuing the unsatisfactory performance warnings in the same month was for the reason that plaintiff, on earlier occasions, had filed EEO complaints, were pretextual, so can she not suggest that this otherwise legitimate office move was pretextual. To the extent that plaintiff seeks relief on the grounds of this office move, defendant is entitled to judgment as a matter of law.
In her Memorandum in Opposition (# 35, p. 19), all she says in terms of pretext about this office move, as well as a later office move in 1997 referred to in the text below, pp. 29-32 is, "Either one or the other [office moves] doesn't make sense if one looks at the big picture'".
We are not sure what "big picture" plaintiff refers to, but we are sure, based on the undisputed material facts that the reasons given for each of those two moves sounded in legitimate employer-employee reasons.
G. The September 1997 Revisions to Plaintiff's Position Description
Some nine months after the issuance of the second "Warning of Unsatisfactory Performance" referred to immediately above, plaintiff filed a fourth EEO complaint on May 23, 1996 — this time generally complaining that she was not permitted to perform her duties in the manner in which she thought that she was entitled. In midsummer of 1996, Commander Comer transferred out of his position as the Air Station's Deputy Executive Officer and he was replaced by Commander Cutrer. Commander Cutrer accordingly became plaintiff's second line supervisor.
On or about September 18, 1997, in response to statements earlier made by plaintiff to Commander Comer [before he transferred out of his position as the Air Station's Deputy Executive Officer], Commander Cutrer and Hammond met with the plaintiff to review her Position Description. Some minor changes were made, but no material changes were made.
In Count IV of the Amended Complaint, Paragraph 40, plaintiff alleges that the modifications made to her Position Description at this September 18, 1997, meeting ". . .result[ed] in her loss of managerial functions[,]" and that that action was retaliatory for her filing of prior EEO complaints.
In the circumstances, to the extent that plaintiff contends that the defendant, by and through the actions of Commander Cutrer, and for unlawful retaliatory reasons, stripped her of her "managerial duties", the material undisputed facts clearly and unequivocally show that plaintiff cannot make out a claim of retaliation.
For one thing, plaintiff has not made any showing whatsoever that her job descriptions included "managerial duties" as such. Her job duties are set forth in the four corners of her Position Description (set forth at Tab 48 of the Appendix to Defendant's Motion for Summary Judgment (# 31)), and nothing therein suggests that she was ever a "manager" as such.
Apparently plaintiff referred to herself as a "Personnel Manager", but her actual job description was that of a "Personnel Assistant." In none of her filings does plaintiff offer anything to show that she was actually classified as a "Personnel Manager." Indeed, all that is really said about that matter is in the argument portion of her Memorandum in Opposition to Defendant's Motion for Summary Judgment (# 35, p. 21), where it is contended (but otherwise not shown — much less shown by any particulars) that ". . .[e]mployees view Ms. Stanley as management'. . .". In this court's view, however, an unnamed employee or number of employees "viewed" the plaintiff, plaintiff still has not shown, and cannot show, that she was a "manager" as such.
For another, even assuming that the duties referred to in her Position Description (set forth at Tab 48 of the Appendix to Defendant's Motion for Summary Judgment (# 31)) included some "managerial" functions, those revisions made at the September 18, 1997, meeting had nothing to do with so-called "managerial duties."
And finally, for the reasons set forth above with respect to other retaliation claims, plaintiff falls woefully short of showing — or being able to show — that whatever revisions to her Position Description that were made at that September 18, 1997, meeting was prompted by the reason that she had previously filed complaints with the EEOC. On this matter, for one thing, it was plaintiff who requested a review of her job description. For another, any changes made (to the extent that any significant changes were made) was the result of the action taken by Commander Cutrer — a person who, for all the record assembled by the plaintiff shows, was not ever aware of the fact that plaintiff had previously filed EEOC complaints. And finally, this action was taken some sixteen months after she had filed her last EEOC complaint. Accordingly, it is pure conjecture to say that Commander Cutrer took this action as retaliation for the filing of an EEOC complaint well before he even came to the Air Station, and to the extent that plaintiff, under Count IV, contends that Commander Cutrer caused the plaintiff to lose managerial functions as retaliation for the filing of EEOC complaints in the past, defendant is entitled to judgment as a matter of law.
Plaintiff does not allege that Commander Cutrer was aware of the previous EEOC filings, and has made no effort whatsoever to make any showing to that effect.
In the argument portion of her Memorandum in Opposition (# 35, p. 20), counsel for plaintiff says: "Ms. Stanley explicitly told the command (then Commander Cutrer) that she felt it was punishment, that she believed it [the relocation] to be reprisal, and despite her pleadings not to be placed there, she was."
There is nothing, however, in her statement of facts portion of her Memorandum in Opposition, which supports that otherwise conclusory statement of counsel, and this court has searched the record submitted by plaintiff and finds no factual support for that conclusion. It is established in this Circuit that purported statements of fact made in a lawyer's legal memorandum is not sufficient, for summary judgment purposes, to establish material facts. E.g., Betances v. Sea-Land Service, Inc., No. 00-2153, Sl. Op. 5 (1st Cir. May 3, 2001); Fragaso v. Lopez, 991 F.2d 878, 887 (1st Cir. 1993). This court accordingly will not conclude that plaintiff can make that showing.
H. The Office Relocation in October 1997
In June of 1997, plaintiff indicated in a memorandum to Hammond in connection with the 1997 Annual Review that she had an excellent working relationship with Assistant MWR Director Kathy King. In the meantime, plaintiff had consistently complained about her relationship with Hammond. Recognizing a need for a change, Commander Cutrer, on or about October 27, 1997, directed that plaintiff, as of that date, while retaining her current job description, report to Director King. In connection with that reassignment, plaintiff's office, within a "couple of days" after this reassignment, was moved to another location in the same building in which Director King was located. According to the plaintiff, this new office was poorly heated and was not as large as her previous office.
Tab 47 to Appendix to Defendant's Motion for Summary Judgment (# 31).
King deposition, p. 34 (Appendix to Defendant's Motion for Summary Judgment (# 31).
She also says that the office was remote from her peers, employees and coworkers.
Plaintiff contends this office move, was, once again, retaliatory.
In her Memorandum in Opposition (# 35, Paragraph 35) plaintiff says:
Ms. Stanley does allege that the move to the MRW office (and the assignment to Kathy King) was retaliatory in her fifth formal EEO complaint, filed on December 30, 1997, and constituting part of the allegations in Count IV of Plaintiff's Amended Complaint.
If plaintiff is now suggesting by her parenthetical "(and the assignment to Kathy King)" that she seeks relief based on this reassignment, that is not a claim properly before this court. For one thing, to the extent that plaintiff suggests by that parenthetical "(and the assignment to Kathy King)" that that formed a basis for relief in her fifth EEOC filing, that clearly misstates the record. Although plaintiff, in that EEOC complaint, complained about her new office location, she never said anything in that complaint about the reassignment to Director King.
And there is nothing in the Amended Complaint itself which complains about, or touches upon, this reassignment.
In the circumstances, however, plaintiff, once again, falls far short of showing — or being able to show — actionable retaliation from the undisputed material facts. In the first place, plaintiff has not shown — and cannot show — that the move to the new office satisfies the second prong of the King v. Town of Andover, supra, formulation — that is, that plaintiff suffered an adverse employment action.
As we have set forth elsewhere (pp. 25, 29-26, 32):
A plaintiff sustains an adverse employment action if he or she endures a "materially adverse change" in the terms and conditions of employment. See Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999) (relying on Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). To be "materially adverse" a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady, 993 F.2d at 136. "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id.; see Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (ADEA protects the employee against "less flagrant reprisals" than termination or a reduction in wages and benefits). (Emphasis added; footnote omitted).
Galabya v. New York City Board of Education, 202 F.3d 636, (2d Cir. 2000)
In the circumstances, this court cannot fairly conclude that this move to the office about which plaintiff complains is the sort of "materially adverse change" in a condition of employment within the meaning of Title VII.
And see note 49 above.
And even if it could be said that the move to the other office constituted a materially adverse change in a condition of employment, the defendant has clearly articulated a legitimate business basis for that move. That move followed — within a couple of days — the reassignment by which Director King was to be her immediate supervisor. The move was to the same building as that occupied by Director King. That — from a business judgment point of view — it is best to have employees located near their respective supervisors cannot be realistically gainsaid. And plaintiff has offered nothing whatsoever to show that that articulated reason was a pretext. To the contrary, for the reasons set forth above, it is clear beyond peradventure that plaintiff cannot make that showing. That is to say, the decision to relocate plaintiff's office was made by Commander Cutrer — a person who, for all the record assembled by the plaintiff shows, was not ever aware of the fact that plaintiff had previously filed EEOC complaints. And this action was taken some sixteen months after she had filed her last EEOC complaint. Accordingly, it is pure conjecture to say that Commander Cutrer relocated plaintiff's office as retaliation for the filing of an EEOC complaint well before he even came to the Air Station, and to the extent that plaintiff, under Count I, contends that Commander Cutrer relocated her office as retaliation for the filing of EEOC complaints in the past, defendant is entitled to judgment as a matter of law.
And to which plaintiff did not object.
See note 52 above.
I. The July 14, 1998 Fifteen Day Suspension
On or about December 30, 1997, plaintiff filed her fifth EEOC complaint, generally complaining about some of the matters set forth immediately above. Some seven months later, on July 2, 1998, plaintiff neglected a request of her then supervisor, Director King, to show her [Director King] "procedures for workers compensation and unemployment claims." When discussing this matter, Director King requested plaintiff to leave her [Director King] the keys for the personnel files in plaintiff's office. Plaintiff consistently refused to do so, and was argumentative and displayed unprofessional demeanor to Director King in front of Director King's staff. Plaintiff consistently argued with Director King to the point that Director King had to call the acting Deputy Executive Officer for assistance.
On July 13, 1998, on account of this incident, Director King issued plaintiff a fifteen day suspension — effective August 10, 1998. That Notice of Suspension (Tab 37 to Appendix to Defendant's Motion for Summary Judgment (# 31)) detailed all the reasons set forth for the suspension, advised the plaintiff that she had a right to respond to that Notice of Suspension, as well as a right to appeal or file a grievance.
Insofar as this court can determine from the record submitted by plaintiff, she did not respond to that notice, or file an appeal or grievance. Indeed, in her Memorandum in Opposition (# 35, Paragraph 36), plaintiff says that she does not dispute the basis for this fifteen day suspension.
Again, for the reasons set forth above, to the extent that plaintiff contends that that fifteen days' suspension was retaliatory, she has offered simply nothing in support of such an inference. The defendant has articulated a legitimate business reason for the disciplinary action. Plaintiff has proffered nothing which indicates that that reason is pretextual. To the contrary, the undisputed evidence of record shows that the suspension was initiated by Director King — a complete stranger to plaintiff's previous EEOC filings — for insubordinate conduct which plaintiff does not, even now, gainsay. That suspension was also initiated some seven months after plaintiff had filed her last EEOC complaint. There is simply nothing in the record which permits an inference that Director King issued the suspension because plaintiff had, in the past, filed EEOC complaints, none of which related to the conduct of Director King. Indeed, plaintiff's own reference to the record shows exactly the contrary. In her Memorandum in Opposition (# 35, p. 22), plaintiff says that Director King had ". . .a history of complaining to the command. . ." about the plaintiff. And for that point, she referred to a memorandum included as Tab 36 to the Appendix to Defendant's Motion for Summary Judgment (# 31). But that memorandum was prepared on or about June 17, 1993 by one [otherwise unidentified] Commander Boetig. In that memorandum, Commander Boetig gave his frank opinion about the qualities of the plaintiff and, in so doing, referred to another report previously prepared by Director King in which she [King] reported numerous instances of mismanagement by the plaintiff. Director King, therefore, may have had a "history" of complaining to the command about plaintiff's work habits, but that history predated any EEOC filings by the plaintiff, and to say that Director King's suspension of the plaintiff was motivated by her filings of EEOC complaints is pure and simple conjecture. Accordingly, to the extent that plaintiff seeks relief for this fifteen day suspension, there is nothing for the ultimate fact finder to decide, and, on the basis of the undisputed material facts, judgment shall enter for the defendant to the extent that the Amended Complaint complains about this fifteen day suspension.
In the argument portion of her Memorandum in Opposition (# 35, p. 22), counsel for plaintiff muses that ". . .King's animosity towards Stanley and her overzealousness in punishing Stanley was/were motivated by King's desire to curry favor with the command. . . .". That is, however, merely a desperate allegation by counsel not supported by the record.
She also referred to her own Tab 28, but that reference had nothing to do with the matter whatsoever.
J. The Failure to Promote, RIF, and Hiring Of Another Claims
Finally, as part of Count V of the Amended Complaint, in Paragraphs 44, 45, 47, 48, 49, and 50, plaintiff alleges a potpourri of matters occurring after March of 1998. Specifically, plaintiff alleges:
Paragraph 46 refers to the fifteen day suspension discussed in the immediately preceding part of this Memorandum and Order.
44. In April, 1998, Ms. Stanley was denied the opportunity to interview for a posted position of Personnel Specialist; Ms. Stanley was qualified for this position and had twelve (12) years' experience in personnel with a large employee unit. Upon information and belief, the employer selected a candidate from outside the Coast Guard Exchange Service/Moral, Welfare Responsibility (hereinafter "CGES/MWR") in violation of the Non-Appropriated Fund Personnel Manual — M12271.1 (hereinafter "the manual").
45. In August 1998, Ms. Stanley discovered that she had been denied an additional opportunity to apply for a promotion, as someone else had been placed in the position of Regional Personnel Supervisor. Ms. Stanley believes she was qualified for this position.
* * *
47. In July 1998, Ms. Stanley requested to go out on sick leave due to stress related ailments. On or about July 31, 1998, she was told by her supervisor, Kathy King, that she had to go out on "worker's compensation" leave. Ms. King forced Ms. Stanley to clear out her office, hand over her keys and be physically escorted from the premises. Worker's compensation benefits were subsequently denied to Ms. Stanley; further, the Defendant/employer refused to cooperate in the worker's compensation claim.
48. Ms. Stanley received no pay from July 31st until September 13, 1998. When Ms. Stanley questioned this, she was told by management to, inter alia, "stop filing EEO complaints".
49. On September 18, 1998, Ms. Stanley received a notice that her position was being eliminated due to a "Reduction in Force" (hereinafter "RIF"). As part of the "RIF", Ms. Stanley's position was changed from a NF3 to a NF2 (a downgrade); Ms. Stanley was not offered the reduced position even though another individual affected by the "RIF" was offered the reduced position with a pay cut.
50. The events which are described above in Paragraph No. 43 through No. 48 constitute adverse employment actions, and were retaliatory in nature, motivated by reprisal against Ms. Stanley for her protected EEO activity, in violation of 42 U.S.C. § 2000(e)-3.
None of these allegations — and nothing offered in support of these allegations [beyond the mere conclusory language set forth in Paragraph 5) — suggests even a hint that that which occurred was on account of retaliation.
For one thing, plaintiff, once again, has failed to bring forth any facts which suggest that any of the employment decisions made in the above-quoted paragraphs was made by a person who was aware of her prior EEO complaints. In Paragraphs 27 through 29 of its Statement of Undisputed Facts, all of which are supported by record evidence, and none of which have been disputed by the plaintiff in terms of factual (as opposed to conclusory) matter, defendant has proffered a non-pretextual legitimate reason for all of the actions referred to in the above-cited paragraphs. There being no genuine dispute as to these proffered reasons, and there being no showing whatsoever that any of these actions were taken by anyone aware of her prior complaints, much less on account of her prior complaints, plaintiff cannot succeed in the remainder of her claims set forth in Count V, and judgment shall enter for the efendant, and against plaintiff, on all claims set forth in Count V.
As the last quiver in her arrow, counsel says in plaintiff's opposition to motion for summary judgment: "Finally, plaintiff believes that her most valuable evidence comes from her own testimony, as the person most intimately knowledgeable about the treatment she received and how her work environment was impacted."
But if there is such valuable testimony, it is not enough to simply say so in conclusory fashion in the teeth of a motion for summary judgment. If there was such valuable testimony, it should have been set forth in a deposition to avoid brevis deposition. The motion for summary judgment is here and now. It is not enough to muse that plaintiff could, at trial, have additional testimony.
With one exception, plaintiff has proffered nothing further in her Memorandum in Opposition and its so-called disputed facts section in support of her claim that the actions taken in the above-quoted paragraphs were taken by anyone with knowledge of her EEO complaints — much less for that reason. The one exception is a statement in her Memorandum in Opposition, Paragraph 42, wherein plaintiff's counsel says: "Ms. Stanley was told by Beverly Johnson, 'head' of personnel in Washington, DC, that she could return to work if she quit filing EEO complaints." That statement of counsel was immediately followed by the reference "(P.App #26, Stanley deposition and Exhibit [Diary Entry])."
This court's review of that exhibit, however, simply does not support that which is opined by counsel. And even if it did, there has been no showing that Beverly Johnson, albeit the "'head' of personnel in Washington, DC, had any authority to hire or fire.
For example, the reduction in force (RIF) was nationwide, and plaintiff, in her memorandum of law in opposition, does not even argue that plaintiff was RIF'ed on account of the fact that she had made prior EEO complaints.
Conclusion
In short, despite her numerous EEO filings, the undisputed facts clearly and unequivocally show that all of the adverse personnel actions taken against the plaintiff were for legitimate, non-discriminatory, personnel reasons. Accordingly, judgment shall enter for the defendant and against the plaintiff on all claims set forth in the Amended Complaint.