Equal Employment Opportunity Commission v. Koch Foods of Mississippi, LLC

REPLY to Response to Motion re MOTION for Summary Judgment

S.D. Miss.October 2, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PLAINTIFF vs. CIVIL ACTION NO. 3:16-CV-768-WHB-JCG KOCH FOODS OF MISSISSIPPI, LLC DEFENDANT KOCH FOODS OF MISSISSIPPI, LLC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Two years before the EEOC filed this lawsuit against Koch, Brown explained to the EEOC that what she and Danny Weems do on a daily basis is "totally different." According to Brown, "Danny's experience might supersede mine but the work load is totally different." (Ex. 1, Brown Dep. 209:1-25, 212:20-215:20) She even told the EEOC to "[g]et a detailed description of what he does every day versus what I do every day. It is totally different." (Id.) Despite these unequivocal statements, the EEOC attempts to portray the positions as not being "totally different" with the hope of creating a fact issue. In an effort to accomplish this objective, the EEOC overgeneralizes Brown's and Weems's respective duties and mischaracterizes deposition testimony to argue that they perform the same job because "they are both responsible for ensuring that customer orders are fulfilled in full." (EEOC Br. 1, 16, 23) Virtually every production employee from the hourly processing employees, to those who weigh, box or label the product, to those who place the product on the trucks, to the front line supervisors, to the plant manager are "responsible for ensuring that orders are fulfilled in full." The undisputed evidence demonstrates that no genuine issue of material fact exists with respect to whether Brown and Weems perform the same job, even if they share Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 1 of 12 2 the same end goal. Moreover, their respective positions do not require equal skill, effort, or responsibility and are not performed under the same working conditions. The undisputed evidence also demonstrates that the pay differential between Brown and Weems is based on factors other than sex. They were hired under different circumstances, had vastly different experience and prior earnings, and work different hours under different working conditions. The EEOC has failed to create a genuine issue of material fact with respect to any of these factors, much less all of them. Yet, the EEOC asks this Court to hold that Brown, who was 24 years old with two-and-a-half months of poultry experience at the time she became Plant Coordinator, must receive the same salary as Weems, who was 54 years old with 27 years poultry experience and who had worked for Koch for four years in inventory control at the time Brown was hired. To accept the EEOC's argument would require a finding that employers must pay employees the same salary regardless of experience, career stage, company tenure, prior salary, and despite different circumstances of hire anytime a plaintiff simply broadly argues that the two positions have similar end goals. The law rejects such a finding. The Court should grant summary judgment in favor of Koch because the two positions at issue are not substantially equal, and Weems and Brown are not paid differently because of their gender. ARGUMENT I. There is No Genuine Issue Of Material Fact For Trial On The EPA Claim. A. Brown and Weems do not perform substantially equal job duties. The linchpin of the EEOC's argument is that both Weems and Brown are "tasked with the responsibility of ensuring that orders are fulfilled in full at the Morton plant." (EEOC Br. at 16) As explained by Bill Anderson, Director of Fresh Supply Chain, everyone in production is responsible for ensuring orders are fulfilled in full, and Brown's specific role is to generate the production schedule. (Doc. No. 71-1, Anderson Dep. 88:17-89:11) Weems is "the production Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 2 of 12 3 floor inventory control" and Brown is "in the office as the coordinator/scheduler." (Id. at 107:21-107:23) When asked if Brown is "responsible for ensuring that orders are fulfilled in full", Stephen Hodge (Shift Manager) responded "No, not really." (Ex. 2, Hodge Dep. 56:14- 57:23) Hodge explained that plant coordinator and inventory control are "two different" positions: the coordinator "tell[s] you what you need to produce" and the inventory control "tell[s] you how many you have produced and what you've got on hand." (Id. at 76:5-18) 1 The EEOC conveniently ignores that Brown herself distinguishes the two positions. Before this suit was filed, Brown explained to the EEOC that she "generate[s] the schedule and he makes sure that everything that is on the schedule gets shipped." (See Ex. 1, Brown Dep. 212:20-215:20, 80:5-6, 119:8-16) Brown later admitted that she is not responsible for monitoring plant production, entering pallet tickets, conducting freezer checks, lifting product, or staying until the last shipment leaves the plant. (See id. at 119:22-120:19, 140:5-144:4, 242:19- 243:25) She performs these duties, which are Weems's primary duties, only "as needed." (Id. at 80:14-20, 483:12-15) Brown also admitted that Weems is not responsible for daily generating the production schedule; participating in daily conference calls; or creating the reports and projections that she creates, which are her primary duties. (Id. at 126:21-127:11) Brown's own statements and testimony about the positions reflect the fundamental differences explained by Anderson and Hodge. There is no genuine issue of fact that they perform different jobs. 1 The EEOC relies on testimony by Ricky Meza, a box room employee who spends 8 of the 9 hours of his day in the box room and who has no direct involvement in production, to contend that Weems and Brown perform the same job duties. (EEOC Br. 17, 25, 28; Ex. 3, Meza Dep. 21:1-9) Meza's testimony about Brown's job duties, specifically including her purported efforts to correct mistakes made by Weems, are based on hearsay. (Meza Dep. 30:5-34:3 (testifying that he "heard" that they were supposed to do the same thing and that most of what he heard was from Brown)) The EEOC also relies on Meza to contend that Weems plays games on his phone and sleeps at work. (See EEOC Br. 8-9, 22) The EEOC disingenuously fails to cite similar testimony that Brown visits social media, plays games, listens to music, and watches videos while at work. (See Doc. No. 71-3, Weems Dep. 155:17- 156:1; Ex. 4, White 55:22-56:9, 112:1-2, 117:2-7; Ex. 3, Meza 27:15-19, 28:2-6; Ex. 5, Battle 44:3-9, 44:20-24). Regardless, such facts are irrelevant to whether Brown and Weems perform substantially the same job duties. Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 3 of 12 4 The deposition testimony of Shannon Scott, Eboni Gipson, and Chequita White also demonstrates that the positions are substantially different. Scott described Brown's "main job [that she] saw her do every day was to put together the spreadsheets." (Ex. 6, Scott Dep. 44:2- 45:19) In her opinion, Brown and Weems "did not do the same job." (Id. at 62:5-17) Gipson explained that Brown "builds the whole schedule. . . . She give out the priorities to each department of what they supposed to run. She interacts with Bill and all the other companies that we work for." (Ex. 7, Gipson Dep. 29:12-22, 30:20-22) She observes Brown "doing the schedule" and "a lot of reports." (Id. at 55:10-17) Gipson also does not believe that Brown and Weems have the same job. 2 (Id. at 56:19-21) White testified that Brown is "taking the orders for the plant to run the stuff." (Ex. 4, White Dep. 61:14-23, 96:23-97:6) White was clear that she did not believe that Brown and Weems did the same job. (Id. at 64:24-65:9) Scott's, Gipson's, and White's descriptions of Brown's core duties reflect Anderson's and Hodge's distinction of the positions and Brown's pre-suit statements. The EEOC has failed to present significant probative evidence to the contrary. 3 Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (nonmovant's burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence”); see also Brown v. Houston, 337 F.3d 539, 541 (5th Cir. 2003) (“improbable inferences and unsupported speculation are not sufficient to [avoid] summary judgment”). Summary judgment is proper. 2 Gipson is currently a clerk at the plant who enters pallet tickets and bills of lading. When asked if she, Weems, and Brown all do the same thing, she responded: "No. Then somebody. . . ain't doing their job." (Id. at 72:8-12) 3 The EEOC claims "those who were in a position to observe Brown and Weems" corroborates that "they share substantially similar job duties." (EEOC Br. 17) However, Hodge and Scott both testified that the two positions are different. Moreover, as explained in note 1, Meza's testimony does not create a fact issue. Further, the EEOC's contention that Anderson did not work in Morton and therefore has no direct knowledge of their duties is not true. (EEOC Br. 17 n.5) While Anderson's office is currently in Flowood, MS, it was in the Morton plant beginning in 2003 or 2004, (Anderson Dep. 32:10-11, 33:14-23, 35:1-3, 74:4-12), until 2009 or later. (Ex. 6, Scott Dep. 54:23- 55:17 (explaining that in 2009 Anderson's office was a couple doors down from Brown's office)) Regardless, Anderson is plainly knowledgeable because he supervises Brown and Weems. Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 4 of 12 5 B. The EEOC's contention that Brown and Weems are both Plant Coordinators is unsupported and does not create a fact issue for trial. The EEOC next attempts to rely on cherry-picked organizational charts to contend that Koch viewed Brown and Weems as having the same job title and "acted to cover up its discrimination" by "creat[ing] distinctions between Brown and Weems for the first time by changing Weems's title on the organization chart." (EEOC Br. 9-10, 17-18, 33) This is simply not true. Critically, the EEOC fails to cite to organizational charts that listed Brown and Weems with different titles years before Brown filed the EEOC charge in 2014. (See Ex. 8, Org. Charts (listing Brown as Product Coordinator and Weems as Shipping Coordinator) This fact alone negates the EEOC's claims. Additionally, Sanchez explained that he created the charts for "his own personal information." (Ex. 9, Sanchez Dep. 111:22-112:9) Indeed, the charts were not official company documents, many were created without proper approval, and they contain inaccurate information. (Ex. 10, 30(b)(6) Dep. 152:5-153:15, 156:4-19, 162:8-13) Regardless, job content, not title, is determinative of whether the positions are substantially equal. 29 C.F.R. § 1620.13(e); see also Brobst v. Columbus Serv. Int'l, 761 F.2d 148, 155 (3d Cir.1985) (central issue is job content, not title or job descriptions). Brown's and Weems's core duties are substantially different. Thus, summary judgment in favor of Koch is proper. See Vasquez v. El Paso Cty. Cmty. Coll. Dist., 177 F. App'x 422, 425 (5th Cir. 2006) (granting summary judgment when plaintiff failed to demonstrate that he performed work substantially equal to comparators). C. The positions do not require equal skill, responsibility, and effort and are not performed under the same working conditions. What constitutes equal skill, responsibility and effort constitutes "separate tests, each of which must be met in order for the equal pay standard to apply." EEOC v. TXI Operations, L.P., 394 F. Supp. 2d 868 (875) (quoting 29 C.F.R. § 1521.14(a)). As explained below, the EEOC has failed to create an issue of fact for each element. Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 5 of 12 6 1. The two positions do not require the same level of skill. Brown testified that the skills required to perform her job include "good computer skills, communication. You've got to be good with numbers." (Ex. 1, Brown Dep. 123:11-21, 232:6- 25, 94:7-96:20) Such computer skills were irrelevant when Weems was hired in 2003 and even today are more relevant to Brown's position. (Anderson Dep. 76:6-78:25) Brown even testified that Weems does not create the reports and projections, participate in conference calls, or create reports for Hodge and the plant manager. (Brown Dep. 103:8-22, 126:21-127:11, 209:22-25, 392:17-396:16) The same level of skill is not necessary for the positions. 2. The two positions do not have the same level of responsibility. The EEOC claims that Brown and Weems have the same responsibility and that Brown has "additional job duties" over Weems's duties. As previously explained, however, Brown is responsible for generating the production schedule and ensuring information on it is accurate, and Weems is responsible for keeping up with inventory and the status of production. Moreover, the EEOC's claim that Brown has "additional job duties" over Weems's duties because she "generates additional reports" is unsupported. (EEOC Br. p. 24) These "additional" duties are simply Brown's actual job duties. As explained above, Weems is not responsible for these reports or the daily conference call. Brown and Weems simply do not have the same responsibility. See TXI, 394 F. Supp. 2d at 878 (granting summary judgment in favor of employer and against the EEOC where positions had different responsibility). 3. Brown and Weems's positions do not require the same level of effort and are not performed under the same working conditions. Effort refers to the physical or mental exertion used to perform a job. Criddle v. Hickory Hill Furniture Co., 1984 WL 1031, *15 (N.D. Miss. May 25, 1984). The EEOC contends the positions require the same effort because Brown and Weems work comparable hours and share Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 6 of 12 7 an office and because Weems allegedly does not perform out-of-office tasks. 4 These conclusory contentions do not create a genuine issue for trial. As an initial matter, Brown and Weems do not work a comparable 8 hour workday. Brown works from 8 a.m. to 5 p.m. on a daily basis. (Brown Dep. 77:3-78:20) The record is undisputed, however, that Weems works daily from 10:00 a.m. until the last shipment leaves the plant, which could be as early as 8 p.m. or as late as 10:30 or 11:00 p.m. (Weems Dep. 114:8-23; Brown Dep. 196:5-16; Hodge Dep. 46:12-19; Doc. No. 71-7, Gates Decl. ¶ 6; Anderson Dep. 101:13-18) 5 The hours are not substantially similar. 6 Moreover, while Brown testified that she spends most of her time on the computer, (Brown Dep. 76:9-24), Weems, on the other hand, repeatedly testified that he performs a number of out-of-office tasks. Weems testified that he monitors the production floor at least three times each day, conducts daily freezer checks in a cold freezer, and inspects the outside plant premises. (Weems Dep. 41:11-43:1, 62:5-13, 74:15-75:10, 83:6-18, 149:12-153:22, 207) The EEOC's contrary statement that Weems is in his office as much as Brown is unsupported. Indeed, Sanchez testified that he has observed Weems ensuring the cafeteria and other areas of the plant are clean, (Sanchez Dep. 87:11-88:1); Meza testified that Weems is "in and out" of the office, (Meza Dep. 13:10-14); Gipson testified that when she worked in shipping, she regularly observed Weems in shipping and the freezer to ensure the product was shipped, (Gipson Dep. 65:11-66:18); Hodge explained that Weems does freezer checks, (Hodge Dep. 52:14-53:25); Anderson explained that Weems's position requires that he is regularly on the production floor, 4 The EEOC relies on a statement by Rick Sanchez, a former Human Resource manager, to contend that Brown's duties are not clerical. (EEOC Br. 22) Sanchez lacks personal knowledge because he did not work with, work in the same building as, hire, or set duties for Brown or Weems. And, it can hardly be argued that answering calls, data entry, and creating reports are not clerical, office tasks. 5 Gipson also testified that Weems has returned to work to perform his duties during her shift, which is 12:15 a.m. to 9:15 a.m. (Gipson Dep. 55:18-56:18) 6 The EEOC essentially argues that payroll records demonstrate that Brown and Weems work comparable hours. (See EEOC Br. 21 and cited deposition testimony). Payroll records are not instructive because Brown and Weems are salaried employees who do not record their time. Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 7 of 12 8 (Anderson Dep. 74:17-22, 105:16-23), and Gates explained that Weems duties were performed on the production floor. (See Gates Decl. at ¶ 5) The effort and working conditions required for the two positions are substantially different. D. Sex played no role in Koch's compensation decisions. Koch's compensation decisions for Weems and Brown were based on the circumstances surrounding their hire, their experience in the poultry industry, and the qualifications and duties of their respective positions. (Ex. 10, 30(b)(6) Dep. 100:12-103:4, 143:7-144:6; Anderson Dep. 77:7-18, 78:1-4 (explaining basis of Brown's promotion)). The EEOC has presented no competent summary judgment evidence to contradict these facts. 7 TXI is instructive. In that case, the court granted the employer's summary judgment motion where before the hiring decision, the employer acknowledged that it sought an employee with more experience in a certain area and the employee "used much of his expertise and experience shortly after being hired." TXI, 394 F. Supp. 2d at 879. The same is true in this case. Before Weems was hired, Koch had recently purchased B.C. Rogers, was in the process of developing inventory procedures, and needed an employee who knew how a processing plant worked and had experience with inventory in the poultry industry. (Anderson Dep. 27-28) Weems used his experience immediately after his hire in 2003 because he worked directly on the 7 Among other things, the EEOC claims that prior salary and salary negotiations are insufficient. Prior salary, however, is a relevant factor. See TXI, 394 F. Supp. at 878 (explaining that prior salary is a factor other than sex). Further, the EEOC's notion that Weems was allowed to negotiate his salary and Brown was not is illusory. Koch's representative testified that "I don't know that I would call it a negotiation" and explained that Weems "indicated what it would take in order to leave another company." (30(b)(6) Dep. 144:12-25) Weems testified that he explained his over 24 years' experience and requested $52,000. (Weems Dep. 22:5-22). Koch offered him $50,000, which he accepted. (Weems Dep. 24:16-25:15) The EEOC's brief also implies that Weems was not employed before his hire at Koch and that he was hired on the heels of being given an option to resign from Choctaw Maid. (EEOC Br. 11-12) Weems explained that after nine years at Choctaw Maid, he was given an option to resign after he and another supervisor verified time for other employees who he did not realize had left the premises. (Weems Dep. 165-167, 168:18-169:10) Regardless, he began working at B.C. Rogers two weeks later, staying there for a year, before he moved to Peco Foods where he worked for at least four years before he was hired at Koch in April, 2003. (Weems Dep. 170:1-172:12) Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 8 of 12 9 production floor and out of the shipping department; monitored and managed the daily production; used his knowledge of production equipment to discern what product was being run and make necessary changes; assisted with creating the current inventory processes in place; and tracked the inventory by hand. (Gates Decl. ¶¶ 4-5; Weems Dep.208:17-210:1; Anderson Dep. 52:7-19). The EEOC has failed to present any evidence to contradict these facts or to demonstrate that the pay differential between Brown and Weems is because of gender. 8 See Yant v. U.S., 588 F.3d 1369, 1373 (Fed. Cir. 2009) (quoting Rep. Griffin to explain that "the burden of proof to show a violation is on the [plaintiff]; he must prove that any differential in pay which exists is actually based on sex"). Under such circumstances, Koch is entitled to summary judgment. See id.; TXI, 394 F. Supp. 2d 868. II. There Is No Genuine Issue of Material Fact That Koch Did Not Violate Title VII. The EEOC claims it has established a prima facie case because Brown performs similar work as Weems. (EEOC Br. 31) As previously shown, however, Weems and Brown do not have substantially similar job duties. Moreover, Weems is not an appropriate comparator because the EEOC has failed to demonstrate that Brown's "circumstances are 'nearly identical'" to Weems' circumstances such that they are similarly situated. Zhan v. University of Mississippi Medical Center, 2016 WL 5374141 (S.D. Miss. Sept. 26, 2016) (quoting Fields v. Stephen F. Austin State Univ., 611 Fed. App'x 830, 831 (5th Cir. 2015) (citation omitted)). Regardless, Koch has demonstrated multiple legitimate, nondiscriminatory reasons for its compensation 8 The EEOC seemingly seeks to create a fact issue by claiming that Weems was a poor performer. (See, e.g., EEOC Br. at 24, n7) The EEOC claims he "had difficulty using Koch's computerized process for tracking inventory and production levels," and that "Anderson had to create an Excel spreadsheet so that Weems only had to input the number of cases of product." (EEOC Br. 29) This is not true. Anderson testified that he created the Excel version of the production schedule because Koch was changing its processes and becoming computerized. (Anderson Dep. 48, 52:3-19) This decision had absolutely nothing to do with Weems's performance. The EEOC also contends that Weems was "fairly quickly demoted" from Second Processing Superintendent to his Inventory Control position. (EEOC Br. 28) The undisputed facts demonstrate that Weems was transferred, not demoted. (30(b)(6) Dep. 150- 151; Anderson Dep. 60:10-14, 116:4-8) Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 9 of 12 10 decisions. See Browning v. Sw. Research Institute, 2008 WL 3009894, *3 (5th Cir. Aug. 5, 2008) (finding legitimate, nondiscriminatory reasons for differential where salary reflected prior work experience, seniority, job title, field of study and contributions to the work of the institute). Absolutely no evidence in the record supports a finding that the pay differential between Brown and Weems is because of Brown's gender or that Koch willfully or intentionally discriminated against Brown. Brown herself would not even testify that the pay differential was because of her gender. (Brown Dep. 257:14-258:15, 274-275) Moreover, a year after Brown was promoted to Plant Coordinator at a salary of $35,000, Sanchez sought approval to offer Gregory Dickens $35,500 to perform Weems's position. (Doc. No.71-8, Sanchez Dep. 72:15-81:10) This offer, which was commensurate with Dickens's experience and the circumstances of his potential hire at the plant, is indisputable evidence that sex played no role in the compensation decisions that resulted in the pay differential between Weems and Brown. There is simply no evidence of pretext in this case and no support for the EEOC's punitive damage claim. 9 CONCLUSION For these and the reasons discussed in Koch's Memorandum in Support of Summary Judgment, Koch's Motion for Summary Judgment should be granted in its entirety, and the EEOC's Title VII, EPA, and punitive damage claims should be dismissed, with prejudice. 9 The EEOC relies on Brown's self-serving testimony and handpicked emails in an effort to demonstrate purported pretext through alleged "disparate treatment" and through conclusory assumptions about Weems's alleged performance issues and Brown's role. (EEOC Br. 31-33) The emails are inadmissible hearsay and are otherwise not competent summary judgment evidence. Regardless, despite the EEOC's contentions that Brown is held responsible for shortages simply because Anderson emails her for information concerning orders, it is undisputed that Weems, not Brown, has been disciplined for shortages and/or overages. (Brown Dep. 117:6-18, 256:12-25; Weems Dep. 52:14-59:25, 125:17-25; Anderson Dep. 10:23-11:1) The EEOC also claims that Weems "was disciplined and demoted . . . due to his unfamiliarity in using computer technology" and that Koch "reassigned many of Weems responsibilities to other department managers, including Brown, because of his documented deficiencies." (EEOC Br. 33) No evidence exists that Weems's duties were "re-assigned" or that he was "disciplined" or "demoted" because of his alleged "documented deficiencies" or "unfamiliarity in using computer technology." Weems requested and was granted a transfer back into his inventory position, and Koch's new method of ordering supplies for the coat room had absolutely nothing to do with Weems' performance but instead was a result of plant-wide budgeting issues that stemmed from the maintenance department, (Hodge Dep. 61:9-63:12). Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 10 of 12 11 This the 2nd day of October, 2017. Respectfully submitted, KOCH FOODS OF MISSISSIPPI, LLC. By Its Attorneys, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC By: s/Nakimuli Davis-Primer NAKIMULI DAVIS-PRIMER OF COUNSEL: Scott W. Pedigo (MB No. 10735) spedigo@bakerdonelson.com Nakimuli Davis-Primer (MB No. 103320) ndavis@bakerdonelson.com BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC One Eastover Center 100 Vision Drive, Suite 400 Jackson, Mississippi 39211-6391 Telephone: (601) 351-2400 Facsimile: (601) 351-2424 Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 11 of 12 12 CERTIFICATE OF SERVICE I certify that I have this day filed a true and correct copy of the foregoing Reply Brief in Support of Motion for Summary Judgment via the Court’s electronic filing system which forwarded copies to the following: Harriett F. Oppenheim, Esq. Gerald Miller, Esq. Marsha K. Rucker, Esq. Maneesh Varma, Esq. Kurt Fischer, Esq. U.S. Equal Employment Opportunity Commission 1130 22nd Street South Birmingham, AL 35205 Counsel for Plaintiff Equal Employment Opportunity Commission This the 2nd day of October, 2017. s/ Nakimuli Davis-Primer NAKIMULI DAVIS-PRIMER Case 3:16-cv-00768-WHB-JCG Document 79 Filed 10/02/17 Page 12 of 12