Opinion
Civil Action No. 3:02-CV-1424-D.
March 12, 2004
MEMORANDUM OPINION AND ORDER
In this action by plaintiff Perry Ann Stith ("Stith") to recover from defendant Perot Systems Corporation ("Perot") for discrimination based on race and sex, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., discrimination based on age, and retaliation, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 201 et seq., and discrimination based on pay, in violation of Title VII and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), Perot moves for summary judgment. The principal questions presented are whether Stith's claims are time-barred and whether they exceed the scope of her Equal Employment Opportunity Commission ("EEOC") charge. For the reasons that follow, the court grants the motion.
Because the court granted Fed.R.Civ.P. 56(f) relief on December 17, 2003, in deciding Perot's motion the court has considered Perot's brief, filed September 2, 2003, Stith's brief, filed January 15, 2004, and Perot's reply brief, filed January 30, 2004.
Stith is an African-American female who was almost 67 years old when Perot terminated her employment. In 1991 she began working for the company in Houston, Texas as an associate. During her tenure she held various positions, and she commuted from her Houston home to work at temporary assignments. At the time she was terminated, Stith was employed in Perot's HealthCare Division as a Senior Specialist-Staffing. The HealthCare Division reimbursed Stith for TDY expenses associated with her commute from Houston, rent for a corporate apartment in Dallas during the week, and other costs incurred in connection with her weekly commute.
The court recounts the evidence favorably to Stith as to the summary judgment nonmovant and draws all reasonable inferences in her favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Although the parties have not defined "TDY" in their briefs, it is commonly understood as the abbreviation for "temporary duty," and Stith referred in her EEOC charge to TDY as "temporary duty assignments." D. App. 202.
On August 29, 2000 Ed Putonti ("Putonti") informed Stith that Randall Booth ("Booth") had decided that she must commute to Dallas at her own expense or relocate to Dallas at her own expense. According to Perot, the company was attempting to reduce expenses in its HealthCare Division as part of a directive to cut unnecessary costs in all North American operations. Putonti set out the "[p]oints covered" during the conversation in an email that stated, in pertinent part:
1. We are changing The HealthCare Staffing position to be staffed out of Dallas. This decision is being made in light of our review of current costs and upon our need to eliminate the additional costs incurred under the current TDY arrangement.
2. I will continue to reimburse you for your TDY expense until October 1, 2000, at which time I will no longer reimburse you for these expenses.
3. The Following Options are available:
• Move to Dallas at your own expense[.]
• Continue to commute to Dallas at your own expense[.]
• Secure another available Perot position that is local, or able to provide permanent relocation reimbursement, or is able to cover TDY expenses incurred.
[4]. I would like your decision on which option you are going to choose by Friday September 8, 2000[.]
[5]. If you choose to secure another Perot position, you will have 60 days from September 8, 2000. If you are not successful in securing another Perot position at that point, your employment with Perot will be terminated.
D. App. 244-45.
Due to the difficulty she faced in paying for her own relocation during the short time available, Stith requested that Putonti and Booth consider other options that would give her additional time to sell her home and relocate. Putonti declined her request, and Stith agreed to move to Dallas at her own expense. Stith also asked that her TDY expenses be paid while she began the process of relocating.
Stith discovered on or about September 25, 2000 that her position had been filled by a younger Caucasian female. Perot terminated her employment on November 7, 2000. Stith offered to wait for another position to become available. Despite promising to help her, Putonti did nothing to assist her in finding a new position with the company.
On November 28, 2000 Perot offered to hire Stith and pay for her relocation to Dallas, but the offer was not unconditional and did not specify details of the job, including its type and rate of pay. Stith maintains that the offer was not bona fide or unconditional because her prior position had already been filled.
On August 15, 2001 Stith filed with the EEOC a charge of discrimination based on race, sex, age, and retaliation, but the EEOC dismissed the charge as untimely. She now brings this action against Perot, asserting that it is liable under Title VII, the ADEA, and the EPA for discrimination based on sex, age, and race, and under Title VII and the ADEA for retaliation. Stith alleges that Perot discriminated against her by imposing the conditions set out in the email, and that it retaliated against her by terminating her employment after she complained that the August 29, 2000 decision was discriminatory. Perot moves for summary judgment.
Perot filed objections to and motions to strike Stith's summary judgment evidence on November 12, 2003 and January 30, 2004. The objections and motion filed November 12, 2003 are addressed to summary judgment evidence that has been superseded by pleadings filed after the court granted Rule 56(f) relief and need not be considered. See supra note 1. Perot's objections and motion to strike filed January 30, 2004 need not be considered because the grounds on which the court has based its decision do not require that the objections be resolved, and the court on its own has accounted for Stith's failure to comply with N.D. Tex. Civ. R. 56.5(c) in the instance that such noncompliance is material.
II
Perot first contends that Stith failed to file a timely charge of discrimination with the EEOC and cannot recover under the ADEA or Title VII for age, race, or sex discrimination and retaliation.A
Stith filed her EEOC charge on August 15, 2001, a date more than 300 days after August 29, 2000. Perot notified Stith on August 29, 2000 that her TDY expense reimbursement was being eliminated and that, if she did not accept one of the three specified options, she would be terminated on November 7, 2000. August 15, 2001 is also 329 days after September 20, 2000, the date Stith complained to Perot in an email that she felt she had been discriminated against and was seeking legal representation. Perot therefore maintains that Stith's complaints regarding the elimination of TDY expense reimbursement, denial of relocation costs, and denial of permission to telecommute from her Houston home are time-barred. Perot also argues that Stith's retaliation and termination claims are barred by limitations. It reasons that, although Stith was terminated fewer than 300 days before she filed the EEOC charge, she became aware on August 29, 2000 of the ultimate effect of her failure to choose one of the three options, a date greater than two months before she was terminated and in excess of 300 days before she filed the charge.
Plaintiff posits for two reasons that her claims are not time-barred. First, she argues that she did not know of Perot's discriminatory actions until November 7, 2000, the date she was terminated, which is 282 days before she filed her EEOC charge. Stith asserts that she had notified Putonti that she intended to pay for her own relocation to Dallas, and until she was terminated she did not know that Perot had no intention of continuing her employment. Second, she contends that if the court concludes that her charge accrued either on August 29, 2000 (the date of the conversation and email offering her the three options) or September 20, 2000 (the date of her email complaining of discrimination), her charge is timely based on equitable tolling. Stith maintains that equitable tolling applies when an employee is led to believe that unfair treatment will be rectified. She contends that she was not represented by counsel at the time she filed her charge; on August 29, 2000 Putonti told her that her job would be staffed out of Dallas and he gave her the three options; on September 20, 2000 she agreed to accept the option to relocate at her own expense by October 1, 2000; and it was not until her November 7, 2000 termination that she knew Perot had no intention of allowing her to remain employed. Because November 7, 2000 is a date 282 days before she filed her EEOC charge, she asserts that the charge is timely.
B
In deferral states such as Texas, an aggrieved party must file her EEOC charge within 300 days after the alleged unlawful practice occurred. See 42 U.S.C. § 2000e-5(e) (Title VII claim); 29 U.S.C. § 626(d)(2) (ADEA claim); see Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 554-55 (5th Cir. 1987); Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). The 300-day filing period is not jurisdictional, but rather is more akin to and operates as a limitations period. E.g., Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir. 1988); Pruet Prod. Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir. 1986). The period commences on the date the alleged unlawful practice occurred. Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989) (citing Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980)); Chapman v. Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989).
A deferral state is one in which (1) a state law prohibiting discrimination in employment is in effect and (2) a state authority has been set up to grant or seek relief from such discriminatory practice. See Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 554-55 (5th Cir. 1987) (Title VII claim); Clark v. Resistoflex Co., 854 F.2d 762, 765 n. 1 (5th Cir. 1988) (ADEA claim).
"In determining when a limitations period accrues in a discrimination case, the `proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful.'" Selby v. Revlon Consumer Prods. Corp., 1998 WL 101903, at *2 (N.D. Tex. Feb. 26, 1998) (Fitzwater, J.) (quoting Delaware State Coll., 449 U.S. at 258). "To decide when the employer notified the employee, the court uses an objective standard that `focus[es] upon when the employee knew, or reasonably should have known, that the adverse employment decision had been made.'" Id. (quoting Clark, 854 F.2d at 765).
The "time period for filing a charge is subject to equitable doctrines such as tolling or estoppel." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). "Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly." Id. at 113-14 (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam)). The Fifth Circuit has identified three possible bases for tolling under this exception: (1) the pendency of a suit between the same parties in the wrong forum; (2) plaintiff's unawareness of facts giving rise to the claim because of defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about the nature of her rights. Blumberg, 848 F.2d at 644 (citing Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302-03 (5th Cir. 1979)).
C
The court first considers Perot's motion to the extent it is addressed to Stith's allegation that the options set out in the August 29, 2000 conversation and email — elimination of TDY expense reimbursement, denial of relocation costs, denial of permission to telecommute from home — were acts of discrimination. The court rejects Stith's contention that the limitations period for these claims did not accrue until November 7, 2000. Stith knew on August 29, 2000 of the elimination of TDY expense reimbursement, denial of relocation costs, and denial of permission to telecommute from home. If these acts were discriminatory, they were so immediately.
The court next considers Stith's termination. Stith appears to reason as follows: Perot advised her on August 29, 2000 of the available options; she exercised one option (relocation to Dallas at her own expense) that would have allowed her to keep her job; and she did not know until November 7, 2000 that Perot did not intend to continue her employment. This argument is foreclosed under principles set out in National Railroad Passenger Corp. and Delaware State College. Stith was advised on August 29, 2000 that she faced termination if she did not exercise and comply with one of the three available options. She knew at least by September 20, 2000 — the date of her email — that she considered Perot's decision to be discriminatory. Although "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act," National Railroad Passenger Corp., 536 U.S. at 113, a discharge that is the delayed but inevitable consequence of an earlier decision is not a discrete act, see Delaware State College, 449 U.S. at 257-58. Stith cannot "use a termination that fell within the limitations period to pull in the time-barred discriminatory act." Nat'l R.R. Passenger Corp., 536 U.S. at 113. To defer the accrual of her discrimination claim until her November 7, 2000 termination, Stith should identify "the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of [her] employment." Id. (quoting Del. State Coll., 449 U.S. at 257). Stith does not assert that the discriminatory act of August 29, 2000 continued to November 7, 2000 or that the act occurred on that date. In other words, she does not posit that, after the August 29, 2000 alleged act of discrimination, Perot continued to discriminate or that it discriminated a second time by discharging her despite her timely exercising one of the options.
Moreover, Stith's reasoning is inadequate on another basis. Stith concedes that Perot gave her until October 1, 2000 to complete her relocation to Dallas. See P. Resp. at 3. She thus knew as of that date that she had not complied with the option she had chosen and that her termination was ineluctable. October 1, 2000 is 318 days before August 15, 2001, and her EEOC charge asserting discriminatory discharge is still untimely.
D
The court turns next to the question whether Stith can avoid the time bar based on equitable tolling. Although Stith mentions that she did not have counsel at the time she filed her charge, the gravamen of her equitable tolling argument appears to be the one the court has already rejected: that she opted to relocate to Dallas at her own expense by October 1, 2000 and was therefore unaware until she was terminated on November 7, 2000 that Perot would not allow her to remain employed.The Fifth Circuit recognizes three possible bases for tolling under this exception: (1) the pendency of a suit between the same parties in the wrong forum; (2) plaintiff's unawareness of facts giving rise to the claim because of defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about the nature of her rights. Blumberg, 848 F.2d at 644. Stith cites no evidence in her brief that would support the application of equitable tolling on any of these grounds. See P. Br. at 3. The only one of the three that could conceivably apply in this case is the exception for a defendant's intentional concealment of the facts that give rise to the claim. But this requires that the defendant commit affirmative acts that mislead the employee and induce her not to act within the limitations period. See Manning v. Chevron Chem. Co., 332 F.3d 874, 880 (5th Cir. 2003) ("We equitably toll a limitations period only when the employer's affirmative acts mislead the employee and induce him not to act within the limitations period."), cert. denied, ___ U.S. ___, 124 S.Ct. 1060 (2004). Stith has not cited evidence of such an affirmative act. Accordingly, the court concludes that her claims based on the options imposed by the August 29, 2000 email and her termination flowing from that decision are not saved from the limitations bar under the doctrine of equitable tolling.
E
The court next determines whether her retaliation claim is time-barred and holds that it is not. Stith appears to allege that she was terminated as a discrete act of retaliation for opposing a practice that she considered discriminatory. In other words, she contends she was discharged both as an act of discrimination arising from Perot's August 29, 2000 decision (a claim the court has already held is time-barred) and as an act of retaliation.Perot contends that Stith's retaliation claim is time-barred based on the same reasoning that applies to her discrimination claim. See D. Br. at 5 (arguing that Stith became aware of the effect of her failure to choose one of the three options on August 29, 2000). The court disagrees. Perot has confused Stith's awareness of the effect of her failure to exercise an option contained in the August 29, 2000 conversation and email with the consequences of the complaint she made on September 20, 2000 that the decision was discriminatory. Stith is not barred "from filing charges about related discrete acts so long as the acts are independently discriminatory[.]" Nat'l R.R. Passenger Corp., 536 U.S. at 113. The discharge on November 7, 2000 would be independently discriminatory if undertaken as an act of retaliation. Accordingly, the court holds that Perot is not entitled to summary judgment dismissing Stith's retaliation claim as time-barred (although, as the court explains infra at § VI, it is entitled to summary judgment on the merits).
III A
Perot next moves for summary judgment on the grounds that Stith failed to exhaust her administrative remedies regarding her equal pay claims under Title VII and the ADEA. It maintains that Stith admits that she did not include in her EEOC charge a Title VII equal pay claim. And it contends that Stith's charge that Perot discriminated in eliminating TDY expenses, relocation costs, working from home, and terminating her based on age, race, and sex, and retaliating against her would not lead to an investigation of her pay.Stith argues that her charge must be read broadly; that she asserted that she was discriminated against based on age, sex, race, and was retaliated against; that she alleged that Perot did not confer on her the benefit of paid relocation, which is a benefit given to her comparators and, read broadly, includes claims of unequal monetary benefits of employment and pay; and that she has made allegations under the EPA that involve discrepancies in pay and other forms of remuneration.
Filing a charge with the EEOC is a condition precedent to filing a Title VII suit. See Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990). This is also true of a suit under the ADEA. See Gustafson, Inc. v. Bunch, 1999 WL 304560, at *6 (N.D. Tex. May 7, 1999) (Fitzwater, J.) (citing 29 U.S.C. § 626(d); Young, 906 F.2d at 179), aff'd, No. 99-11289, 244 F.3d 134 (5th Cir. Dec. 8, 2000) (per curiam) (unpublished table decision). This requirement serves the dual purposes of affording the EEOC and the employer an opportunity to settle the dispute through conciliation, and giving the employer some warning as to the conduct about which the employee is aggrieved. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). The lawsuit that follows is limited in scope to the EEOC investigation that could reasonably be expected to grow out of the charge of discrimination. Young, 906 F.2d at 179 (citing Sanchez, 431 F.2d at 466). In other words, the complaint may encompass any kind of discrimination "like or related to" allegations contained in the EEOC charge. Sanchez, 431 F.2d at 466. Because a person filing an EEOC charge is usually not represented by counsel, the court must not strictly construe the EEOC charge and require the complainant to allege every instance of discrimination. See Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993).
A plaintiff's EEOC affidavit and intake questionnaire may also be considered in determining the scope of the EEOC charge. See Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 (5th Cir. 1994). Stith has not cited an intake questionnaire in her brief.
C
The court holds that — with one, immaterial exception — Stith's equal pay claims under Title VII and the ADEA are not like or related to the allegations set out in her EEOC charge. Stith's EEOC charge mentions pay only to the extent that she complains of being required to be responsible for relocation expenses, and she asserts that "White associates . . . were paid relocation expenses[.]" D. App. 203. Therefore, the only kind of discrimination "like or related to" this claim would be race (not age) discrimination based on Perot's failure to pay relocation expenses, not based on another type of discrimination or another form of a denial of equal pay. A claim based on this type of race discrimination is immaterial, however, because it is time-barred for the reasons explained supra at § II(C). Any claim that Perot failed to pay relocation expenses due to Stith's African-American race accrued no later than August 29, 2000, when Perot informed her unequivocally that such expenses would not be paid.The court therefore grants summary judgment dismissing Stith's equal pay claims asserted under Title VII and the ADEA.
IV A
Perot next moves for summary judgment dismissing Stith's EPA-based equal pay claim. It contends that Stith cannot establish this cause of action because the males whom she has used as comparators were Supervisors to Senior Specialists rather than Senior Specialists. Perot also argues that Stith must show that any disparity occurred after December 21, 1999 to fall within the two-year statute of limitations prescribed by 29 U.S.C. § 255(a).
Stith filed suit on December 21, 2001 in the Southern District of Texas, after which the case was transferred to this district. The court need not consider this argument in view of its disposition of Perot's first argument.
Stith responds that Perot has incorrectly limited the male comparators and that they include all male staffing managers whom Perot employed. She complains that Perot has not provided all personnel file information that would permit a proper comparison to be made under the EPA, and she posits that the comparators are these 13 males: Randall E. Biery ("Biery"), Keith D. Blodgett ("Blodgett"), Terry G. Halterman ("Halterman"), Brad J. Radochonski ("Radochonski"), Benjamin Paul Slaughter ("Slaughter"), Jeffrey A. Slutzker ("Slutzker"), Kevin W. Vestal ("Vestal"), Gilbert R. Brown ("Brown"), Brent J. Dreyer ("Dreyer"), Deven J. Fuhrman ("Fuhrman"), Christopher M. Gilmore ("Gilmore"), Paul W. Hunter ("Hunter"), and Tim L. Lankes ("Lankes"). She also maintains that Perot has not produced information concerning these individuals and that this issue is not ripe for summary judgment. In its reply brief, Perot contends that Stith has received the necessary information in response to her discovery requests.
B
As a threshold matter, the court considers Stith's contention that this ground of Perot's motion is not ripe. Stith filed a Fed.R.Civ.P. 56(f) motion after Perot moved for summary judgment. See supra note 1. The court granted the motion on December 17, 2003 and extended the deadline for Stith to respond to the motion. She filed her response on January 15, 2004, but she did not move again for relief under Rule 56(f). Even if the court considers the assertion contained in her brief to be the functional equivalent of such a motion, she has not supported it with the required nonevidentiary affidavit. See, e.g., Union City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987) (holding that to comply with Rule 56(f), party opposing summary judgment must file specified nonevidentiary affidavit explaining why he cannot oppose the summary judgment motion on the merits). Accordingly, the court holds that having obtained Rule 56(f) relief already, and having failed to comply with Rule 56(f), Stith is not entitled to an additional continuance and that this ground of Perot's motion is ripe for determination.C
The EPA prohibits employers from discriminating on the basis of sex by paying wages to employees of one sex that are less than the rate paid employees of the opposite sex for equal work on jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. 29 U.S.C. § 206(d)(1). To establish a prima facie case under the EPA, Stith must show: "1. [that Perot] is subject to the Act; 2. she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and 3. she was paid less than the employee of the opposite sex providing the basis of comparison." Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993) (footnote omitted). Stith must show that any pay disparity is a result of sex and cannot be attributed to any other factor, and she must also show that her male comparators hold positions that require virtually identical skills, effort, and responsibilities. 29 U.S.C. § 206(d)(1); Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973). "If the plaintiff meets this burden, the burden of proof `shifts to the employer to show that the differential is justified under one of the Act's four exceptions.'" Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983) (Title VII unequal pay case) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974)). These exceptions are: the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. 29 U.S.C. § 206(d)(1); Schulte v. Wilson Indus., Inc., 547 F. Supp. 324, 338-39 (S.D. Tex. 1982). "The exceptions are affirmative defenses on which the employer has the burden both of production and of persuasion." Plemer, 713 F.2d at 1136 (quoting Corning Glass Works, 417 U.S. at 197). Although EPA claims are subject to a burden-shifting framework that is similar to the one used in Title VII claims, there is one critical difference. "In a Title VII case, the burden of persuasion always remains with the plaintiff." Plemer, 713 F.2d at 1136. In an EPA case, however, the defendant has the burden of persuasion if a plaintiff establishes a prima facie case. Id.
To satisfy the second and third elements of her prima facie case, Stith compares her salary to those of Biery, Blodgett, Halterman, Radochonski, Slaughter, Slutzker, Vestal, Brown, Dreyer, Fuhrman, Gilmore, Hunter and Lankes, whom she alleges are all male staffing managers with substantially equal workplace requirements. Stith has not presented sufficient evidence to create a genuine issue of material fact concerning the skills, effort, and responsibilities of her comparators and whether they are "virtually identical" to her position as Senior Specialist-Staffing. Four comparators who held the same job title were paid less than Stith. She testified in her deposition that she made "ninety-something" (i.e., approximately $90,000) before she was terminated. Brown's top salary in the same position was $69,213.96; Dreyer's highest salary in the position was $81,600.00; Gilmore's highest salary in the position was $70,331.00; and Hunter's top salary in the position was $83,071.68. See D. App. 31; P. App. 113-116.
Moreover, Stith has failed to cite evidence that would permit a reasonable jury to find that Biery, Blodgett, Halterman, Radochonski, Slaughter, Slutzker, Vestal, Fuhrman, and Lankes held positions that required equal skill, effort, and responsibility under similar working conditions. See P. Br. at 6-7. This court is not required to "sift through the record" in search of a genuine issue of material fact. Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996). Conclusory assertions, made without any citation to evidence, are insufficient to withstand summary judgment. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). N.D. Tex. Civ. R. 56.5(c) provides that "[a] party whose . . . response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence."
In her deposition, Stith identified Johnny Howard ("Howard"), Linda Curts ("Curts"), Putonti, and Mark Lewis ("Lewis") as comparators who received higher pay. Howard and Curts are female. Stith has not adduced evidence that would permit a reasonable jury to find that Putonti or Lewis held similar positions of equal skill, effort, or responsibility or that they were paid a higher salary. Putonti was Stith's supervisor. Lewis supervised an employee who, as was Stith, was a Senior Specialist in another division. Putonti and Lewis supervised staffing employees, including Senior Specialists-Staffing; they were not staffing employees themselves.
Howard's first name is spelled "Johnnie," and she is female. D. App. 35.
Additionally, as Perot points out in its reply brief, Stith has not cited evidence that Putonti or Lewis received higher pay than she. See D. Rep. Br. at 11.
Accordingly, the court grants summary judgment dismissing Stith's EPA cause of action.
V
Perot next moves for summary judgment on the ground that Stith cannot establish discrimination based on age, race, or sex under Title VII and the ADEA. In this part of its brief, Perot advances alternative merits-based arguments in the event its limitations argument is rejected. See D. Rep. Br. at 13 (referring to Stith's "time-barred claims of discrimination under Title VII and the ADEA"). Because the court has already held that the claims based on the options set out in the August 29, 2000 conversation and email, and Stith's termination, are time-barred, it need not decide whether Perot is entitled to summary judgment on the merits.
In her summary judgment response, in addition to her Title VII and ADEA discrimination-based causes of action that rest on what she maintains are discriminatory components of the August 29, 2000 decision and on her termination, Stith refers to being passed over for promotions and subjected to racially offensive workplace comments. See P. Br. at 8, 10. Stith made similar allegations in her complaint. See P. Compl. ¶¶ 12, 13, 15. She did not, however, include assertions "like or related to" these claims in her EEOC charge. There is no mention of promotions or a racially offensive workplace. The thrust of her complaint pertains to the requirements of the August 29, 2000 decision, her termination, and related assertions of discrimination and retaliation. In her EEOC charge, she stated that the earliest date discrimination took place was August 29, 2000 (i.e., the date of the conversation and email) and the latest date was November 7, 2000 (i.e., the date of her termination). See D. App. 202. The court therefore concludes that the assertions Stith makes in her brief are offered as direct and circumstantial evidence of the discrimination and retaliation claims that she has otherwise asserted, not as distinct discrimination claims.
VI
Finally, Perot moves for summary judgment dismissing on the merits Stith's Title VII and ADEA retaliation causes of action. Perot argues that Stith relies only on her subjective belief that she was retaliated against when she was terminated. It maintains that because she was told on August 29, 2000 that she would be discharged — which occurred weeks before she advised the company on September 20, 2000 that she believed she had been discriminated against and was seeking legal counsel — Stith cannot establish that Perot retaliated against her for engaging in protected activity. Perot posits that Stith cannot prove the required causal connection between her termination and protected activity because, after she engaged in it, Perot did what it said it would do (i.e., terminate her employment) before she engaged in that activity.Stith has not responded specifically to this ground of Perot's motion and has thus failed to demonstrate a basis for a reasonable jury to find retaliation. Although the court is not permitted to enter a "default" summary judgment, the court is allowed, however, to accept the evidence adduced by Perot as undisputed. Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Moreover, Stith's failure to respond means that she has not designated specific facts showing that there is a genuine issue for trial on the issue of retaliation. "A summary judgment nonmovant who does not respond to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)).
Nor is the court able to conclude that a reasonable jury could find retaliation on these facts. Perot advised Stith on August 29, 2000 that her TDY expenses would cease on October 1, 2000, thus effectively imposing an October 1, 2000 deadline on the exercise of the first two options to avoid termination. Perot advised her that, if she exercised the third option, she would have 60 days from September 8, 2000 to secure another position at Perot; if she did not, her employment would be terminated. See D. App. 244-45. Perot thus advised Stith of the possibility of termination before she engaged in protected activity. Precisely 60 days after September 8, 2000, on November 7, 2000, she was discharged. Perot is entitled to summary judgment dismissing the retaliation claim on the merits. See Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 17 (1st Cir. 1997) (affirming summary judgment dismissing retaliation claim where plaintiff was told before he requested accommodation for disability that termination was possible if he did not submit a performance plan, and employee did not submit plan, and observing that "the timing dictates against concluding that the request for accommodation caused the termination[.]").
* * *
Accordingly, for the reasons set out, the court grants Perot's motion for summary judgment and dismisses this action by judgment filed today.