Opinion
Civil No. JFM-99-2826
July 28, 2000
MEMORANDUM
Plaintiff Carol King has brought this action under Title VII of the Civil Rights Act of 1964 against defendant The Hertz Corporation ("Hertz") for sex discrimination and retaliation. Discovery has been completed, and Hertz has moved for summary judgment. The motion will be granted.
I.
Hertz's car rental operations at Baltimore-Washington International Airport ("BWI"), Washington National Airport ("National"), Dulles International Airport ("Dulles"), and downtown Washington, D.C. are organized as an integrated administrative unit known as the "Baltimore-Washington Pool" with offices in Alexandria, Virginia. Each of the airports and downtown Washington site are supervised by individual City Managers who report to the Pool Manager. In turn, Senior Station Managers and Station Managers report directly to their City Manager. Senior Station Managers and Station Managers supervise the hourly employees and are responsible for overseeing three distinct areas: the rental counter, the lot operation, and the "Gold" operation (preparing in advance rental contracts and cars for special "Gold" customers). In addition, Senior Station Managers must frequently respond to various emergencies in all three areas of operation. They also are routinely scheduled to work "float" shifts, which likewise require working in each area.
King was hired by Hertz in 1978 as a Rental Representative at its BWI site. She was promoted to Station Manager six years later. In 1997, King underwent back surgery for a recurrent disc and was on medical leave from July until October. Then, in March 1998, King again experienced back discomfort after working in the "Gold" and lot operations, both of which involved walking on concrete, lifting up automobile hoods, and bending to check inside rental cars. King obtained medical documentation stating that she could not work for more than eight hours in a day or on concrete floors. Hertz honored these medical restrictions and from then on assigned her to work exclusively at the rental counter.
In August 1990, Mike Kovalcik became the Manager of the Baltimore-Washington Pool. He did not promote or transfer anyone into the position of Senior Station Manger until 1996. Then, due to the entry of Southwest Airlines, Kovalcik made numerous personnel decisions to address the significantly increased rental volume at BWI. Initially, he promoted Richard Chamberlain from Station Manager to Senior Station Manager. In August 1998, Chamberlain was promoted to City Manager in Wilmington, North Carolina. Gary Petty was then promoted from Station Manager at Dulles to Senior Station Manager at BWI; Jose Paganini was promoted from Station Manager at BWI to Senior Station Manager at Dulles; Hollon Payne, a Senior Station Manager at Dulles, was transferred to BWI; and Christine Smith, a female, was promoted from Station Manager to Revenue Manager at BWI. Later in 1998, Terri Zeigler, a woman, was transferred from National to BWI as a Senior Station Manager. In March 1999, Heiner Berrick was promoted from a Station Manager in Ohio to a Senior Station Manager at BWI, and Matthew Canelos was promoted from a Station Manager at BWI to a Revenue Manager at Dulles. Hertz knew that King was interested in advancing to the position of either Senior Station Manager or Revenue Manager.
King recalled that prior to 1990 the last Senior Station Manager was Sydney Dean, a woman, who held the position in the mid-1980s.
On March 31, 1999, King left work early after informing another Station Manager that she would not be at work the next two days due to an illness in her family. The next day, King visited the EEOC in Baltimore. A few days later, King called another Station Manager to notify him that her stepmother had passed away and that she would not return to work until after her vacation ended on April 18. She was absent from April 5 to April 8 when her vacation commenced. During her vacation, King called again to inform the BWI site that she was taking off April 19 to grieve for an aunt who had recently passed away. Hertz's leave policy for bereavement did not cover stepmothers or aunts.
When King returned to work, she was suspended with pay and benefits (except for use of a company car) while Hertz investigated her unauthorized absences. After meeting with King, Hertz officials decided to transfer her to Dulles in order to give her a "fresh start" away from BWI where she seemed to be having difficulty. The next day King faxed Kovalcik two doctors' notes stating that she could not return to work until mid-May due to her back condition. Hertz officials then demanded additional medical records to support King's medical restrictions. King eventually complied and Hertz conducted an independent medical examination. After receiving the results of the independent evaluation, Hertz placed King on short-term medical disability. King then underwent neurosurgery for her back and was out on sick leave until she resigned in November 1999.
Even before her extended absence, King had received three memoranda in the previous seven months from BWI managers regarding poor judgment and job performance. These write ups, of course, cannot be considered retaliatory employment actions because they occurred well before King's visit to the EEOC.
II.
An employee may use either direct or indirect methods to establish a prima facie case of disparate treatment under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). King is unable to provide any direct evidence of discrimination to support a case of disparate treatment. Therefore, to create a prima facie case under Title VII for failure to promote, a plaintiff must prove that (1) she belongs to a protected class; (2) her employer had an open position for which she applied or sought to apply; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. See Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996).
Here, King has not shown that she was qualified for the position of Senior Station Manager. She was medically restricted from working in two of the three areas required to perform the duties of a Senior Station Manager. King does little to contest this. Instead, King highlights the importance of her work at the rental counter in an effort to demonstrate her managerial competence. In addition, King submits company awards and customer commendations that she received while working as a Station Manager. However, her competence, or even excellence, behind the rental counter is immaterial since King acknowledges that she was incapable of performing the many other tasks required of a Senior Station Manager. Accordingly, she was unqualified for a promotion to Senior Station Manager.
King alleges that she occasionally was assigned to or assisted in the garage when needed. These unsupported allegations, however, are directly contradicted by her deposition testimony. See Pl. Dep. at 118-19, 159. Even assuming her allegations are true, King's infrequent assistance in the lot or "Gold" operations does not demonstrate that she was qualified for Senior Station Manager.
King also sought advancement to the position of Revenue Manager. Again, she is unable to establish a prima facie case. While it is true that she was twice passed over for a promotion to Revenue Manager, there are no circumstances giving rise to an inference of sex discrimination. Hertz's Baltimore-Washington Pool promoted two Station Managers to Revenue Manager; one position went to a man, the other a woman. Although the "burden of establishing a prima facie case of disparate treatment is not onerous," Burdine, 450 U.S. at 253, that does not mean that the burden is nonexistent. King has failed to show any circumstances giving rise to an inference of sex discrimination. On this record, her claim that she was not promoted to Revenue Manager because she is a woman is completely baseless.
Finally, King asserts that Hertz retaliated against her for reporting her situation to the EEOC. She claims that after she met with the EEOC Hertz attempted to transfer her from BWI to Dulles, and required her to provide additional medical documentation before authorizing her short-term disability leave. To establish a prima facie case of retaliation, a plaintiff must show "that (1) she engaged in protected activity, (2) the employer took adverse action, and (3) there was a causal connection between the two."Karpel v. Inova Health Sys. Serv., 134 F.3d 1222, 1228 (4th Cir. 1998). Most courts have held that transfers alone are insufficient to rise to the level of a materially adverse employment action.See Knussman v. Maryland, 16 F. Supp.2d 601, 613 (D.Md. 1999). "[A]bsent a change in title, compensation, responsibility or working conditions, a mere transfer does not amount to adverse employment action." Caussade v. Brown, 924 F. Supp. 693, 700 (D.Md. 1996). Thus, King's transfer from BWI to Dulles, which was with the same pay, title, and working conditions, does not constitute an adverse employment action.
Although King would have had a longer commute, this is insufficient to count as an adverse employment action. See Knussman, 16 F. Supp.2d at 613 (holding that a "geographic transfer, although undesirable to [plaintiff], does not constitute adverse employment action"); Darnell v. Campbell County Fiscal Court, 731 F. Supp. 1309, 1313 (E.D.Ky. 1990) (stating that transfer to job with same pay, same benefits, and same title not adverse employment decision even though new job requires longer commute). Commuting between Baltimore and Washington, D.C. is a common practice. Moreover, Hertz in particular regularly transferred employees to different sites within its Baltimore-Washington operations area. King herself has candidly affirmed that she would not have objected to commuting to Dulles if it were for a Revenue or Senior Station Manager position.
There is also no support for King's assertion that Hertz's request for additional medical information or independent examination equates to an adverse employment action. After submitting the additional documents and undergoing the medical evaluation, Hertz placed King on short-term disability leave, and she did not lose a single day's pay. Because King has failed to demonstrate that an adverse employment action occurred, she is unable to establish a prima facie case of retaliation.
Further, even assuming that King did establish a prima facie case, she has not presented any evidence to show that Hertz's legitimate, nondiscriminatory business reasons for not promoting her were pretextual. See generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). King merely relies on her own allegations and suppositions. These are insufficient to create an issue of material fact.
I briefly note that the Supreme Court's recent decision inReeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097 (2000) is not pertinent here because King has neither established a prima facie case of discrimination nor demonstrated that Hertz's explanation for not promoting her is false.
For these reasons, defendant Hertz's motion for summary judgment is granted. A separate order to that effect is being entered herewith.
ORDER
For the reasons stated in the memorandum entered herewith, it is, this 28th day of July, 2000
ORDERED that
1. Defendant Hertz's motion for summary judgment is granted;
2. Judgment entered in favor of Defendant against the Plaintiff; and
3. The Clerk is directed to close this file.