Opinion
Civil Action No. 03-2411-KHV.
October 22, 2004
MEMORANDUM AND ORDER
Cherilyn Richards filed suit against her former employer, ElDorado National Company, for sexual discrimination, harassment and retaliation inviolation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and for violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #33) filed May 10, 2004 and Plaintiff's Motion To Strike (Doc. #62) filed July 9, 2004. For reasons set forth below, defendant's motion for summary judgment is sustained in part and plaintiff's motion to strike is overruled as moot.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law."Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof."Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Factual Background
For purposes of defendant's motion for summary judgment, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.ElDorado National, Inc. ("ElDorado") is a wholly owned subsidiary of Thor Industries ("Thor"). ElDorado manufactures small to mid-size passenger buses. On October 1, 1997, ElDorado hired plaintiff to work in payroll, accounting and personnel at its plant in Salina, Kansas. In December of 1998, defendant promoted plaintiff to human resources ("HR") director. Plaintiff's job duties included maintaining personnel and attendance records, tracking and maintaining distribution of benefits, and employee relations issues. After some period of time, plaintiff's duties included OSHA compliance and workers compensation. Plaintiff was not responsible for hiring and firing. Plaintiff reported to John Resnik, vice president and chief financial officer.
In July of 1996, plaintiff had received a bachelor's degree in accounting from Fort Hays State University. For approximately 13 months, she then worked as a staff accountant at an accounting firm in Salina.
From 1997 through 2002, plaintiff and Glenda Mutschler were the only female employees in management.
Weekly Management Meetings
Plaintiff was often excluded from weekly management meetings, which primarily concerned product and customer-related issues. On four or five occasions, plaintiff discussed the issue with Dean Bruick, the corporate director of personnel for Thor. Bruick told plaintiff that he thought it was important that she attend the weekly meetings. Bruick spoke to Resnik and Sheldon Walle (general manager and vice president) about the issue, but they continued to exclude plaintiff from the meetings unless specific personnel issues were involved. At one of the weekly meetings, Jeff Montgomery, a purchasing manager, told the other managers that plaintiff should have been in the meeting since she was a supervisor.
When El Dorado hired a male HR director in January of 2003, it allowed him to attend the weekly meetings.
Funeral Leave Report
In March of 2001, plaintiff took a business trip to Los Angeles, California. A production employee, Dean Gaither, with whom plaintiff was having an intimate relationship, met her there. During their stay at a motel, Gaither called ElDorado's after-hours answering machine and falsely reported that he was absent from work because his grandmother had died and he was taking funeral leave. Gaither told plaintiff that he had reported his absence as funeral leave, and plaintiff did nothing to correct the company attendance records. Plaintiff never discussed with Gaither how to report his absence.
An HR clerical assistant later complained to Resnik that Gaither had taken funeral leave for his California trip. On June 12, 2001, after that complaint, plaintiff met with Resnik, Walle, Danny Webb (production superintendent) and Gary Gragg concerning Gaither's leave. During that meeting, plaintiff offered to resign. Resnik told plaintiff that he did not think resignation was necessary and that he would give her 24 hours to revoke her resignation. Plaintiff withdrew her resignation the following day. On June 14, 2001, plaintiff and Gaither received essentially identical punishments — loss of $800 bonuses and final written warnings. Gaither also had to repay a perfect attendance bonus which he had received. Walle and Resnik told plaintiff that they were disciplining her because as HR director, she had a duty to report that she knew an employee had falsified his whereabouts during a leave of absence. Based on the manner in which defendant had disciplined other management employees, plaintiff believed that she should have received a written warning without losing her bonus. At some point after the meeting between plaintiff, Walle and Resnik, Walle told plaintiff something to the effect that he was disappointed that she was involved with or dating Gaither.
Plaintiff's Compensation
Plaintiff's starting pay was $10.00 per hour, plus a "hitch bonus" of $3.00 per bus completed. Between December 1997 and March 2001, plaintiff received nine hourly pay increases. On August 1, 2000, defendant increased plaintiff's hitch bonus from $4.00 per bus to $6.00 per bus. During plaintiff's employment, Resnik, Walle, Webb, Doug Hendrixson, Rick Merry (an assistant production supervisor) and Fred Sheldon (production supervisor) received hitch bonuses of at least $9.00 per bus. No female employees received a hitch bonus of $9.00 or more. In March of 2001, plaintiff's pay shifted from hourly to an annual salary of $30,000 with continued participation in the hitch bonus program. Plaintiff supervised six employees in the transportation department for six months, from January until June of 2001, when she asked to be relieved of that duty. On October 3, 2001, plaintiff sent Resnik an e-mail requesting a raise in her salary to at least $65,000 per year. Plaintiff was "okay" with her pay relative to other HR professionals in the Salina job market, but she believed that she was underpaid relative to other employees at ElDorado.
A "hitch bonus" is a bonus based upon the number of buses sold and delivered each month. Salaried and hourly employees were eligible for the hitch bonus, which was intended as an incentive for employees who were not eligible for the "production bonus," a bonus based on sales dollar volume.
On October 19, 2001, Resnik met with plaintiff to discuss her request for a raise. Resnik told plaintiff that her decision to seek a raise — just months after her discipline for the funeral leave report — was not good timing, and that plaintiff was paid according to her job duties, experience and product knowledge. In determining salaries, Resnik reviewed or relied upon experience with the company, responsibility, the number of employees supervised, performance, education, training and knowledge of the individual that went beyond just experience (such as product and company knowledge), and the ability to replace the individual for a comparable salary.
From 1998 through 2001, the four full years when plaintiff was employed by ElDorado, her total W-2 pay was as follows: $32,311 (1998); $37,797 (1999); $46,683 (2000) and $50,336 (2001). Production Supervisors at ElDorado supervise anywhere from 39 to 74 employees and have 13 to 22 years with ElDorado accumulating extensive product knowledge. Production Supervisor Mark Abell, for example, had been employed with ElDorado for 16 years in 2001, and supervised 39 employees. For 2001, his total compensation was $50,826.51, compared to plaintiff's total compensation of $50,336.68.
Some management level employees received "MIP" bonuses. Defendant does not have a written policy regarding the criteria for MIP bonuses, but it generally bases MIP bonuses on employee contribution to the company, experience, knowledge, skills and abilities. Walle, Resnik, Gragg and Andy Imanse (president of ElDorado) determined whether defendant would pay MIP bonuses to management employees. Plaintiff did not receive an MIP bonus, but the current HR director receives such a bonus. No female employees currently receive an MIP bonus.
Following a Department of Labor audit in September or October of 2000, Resnik classified the HR director as a member of lower management. Plaintiff disagreed with the classification and thought that the HR director should be in middle management. All individuals in middle management were male and received higher salaries than plaintiff. Plaintiff's expert, Gloria Wall, opined that plaintiff's position should have been classified as middle management and that defendant classified it below the position's competitive market value. Wall stated that 75 per cent of manufacturing HR managers received higher salaries than plaintiff in 2001. Plaintiff's Performance Reviews
Wall concluded that plaintiff's job most closely resembled a "human resources manager," which typically commands less compensation than a "human resources director." Wall concluded that plaintiff was paid within the compensation range for a HR manager, but that she was paid below the middle of that range.
Until her discipline in June of 2001, plaintiff's performance reviews were generally satisfactory to above average. Plaintiff received a performance review on July 23, 2001. Resnik gave plaintiff a "four" rating (below average) in the category of judgment. Resnik indicated that plaintiff worked hard and efficiently, that she was accurate, that she exercised "good judgment with one exception that has been documented," and that plaintiff was doing an excellent job representing the company to the Department of Labor. Resnik also referred to plaintiff's use of profanity.
About six months later, on January 4, 2002, plaintiff received another performance review which gave her a "five" rating (unacceptable) under the category of communication, a "four" rating (below average) in five categories and a "three" rating (average) in the final two categories. See Resnik Depo. Exh. 18. Plaintiff received a poor review for excessive absenteeism, poor attitude, poor communication with several departments, below-average judgment, failing to follow up on safety committee reports and over-delegation of job duties. In the review, Resnik said that plaintiff should "assume direct responsibility for safety and accident investigation and HR administration." Tracie Tripp, a female employee who was assistant HR director, testified that because she had tried to assume direct responsibility for safety and accident investigation and HR policy administration, Resnik's comment may have reflected unhappiness with Tripp's performance — rather than plaintiff's. Plaintiff believes that she received these negative ratings because Gaither had filed a complaint against defendant. The review in January of 2002 was the first time in which plaintiff received a "five" or unacceptable rating. During a meeting on plaintiff's performance review, Resnik told plaintiff that he had wanted to talk to her a few months earlier but that he had decided to wait because of claims which Gaither had asserted against the company — including one for sexual harassment.
Gaither had left ElDorado in November of 2001. Near the same time, defendant settled several claims asserted by Gaither.
At the request of defendant's counsel, Tripp determined that between January 4, 2001 and April 19, 2002, no lower management level employees except plaintiff received ratings lower than three. Moreover, defendant gave only a couple of threes during this period. Tripp did not know of anyone except plaintiff who received a four or five.
Plaintiff's Work Environment And Discipline Of Other Employees
Plaintiff never encountered any type of quid pro quo sexual harassment at ElDorado.
Prior to plaintiff's employment, two management employees had some sort of sexual involvement on the mezzanine at the plant, but neither employee was written up or disciplined.
Webb was a gruff co-worker. Webb made comments which belittled plaintiff, and questioned her on things that she had not recorded correctly or done in a timely manner. He would state words to the effect of "what the hell are you doing up there?" Webb and Merry did not accept plaintiff's input on matters such as hiring.
Webb and Walle both used profanity in the workplace, but neither individual was disciplined for doing so.
Randy Bertrand is classified as middle management and supervises two employees. Before June of 2001, a couple of female employees complained to Walle and/or Resnik about sexual harassment by Bertrand Bertrand's employment file, however, contains no documentation of any discipline.
During an audit about how many female employees had been hired in certain departments, Merry advised Department of Labor investigators that "I'm not going to hire any woman." Merry later denied making the statement, but defendant gave him a final written warning with no loss of pay. Merry is still directly involved in the hiring process.
Shortly after his wife had a child, Darren Jones attended a motorcycle rally in Sturgis, South Dakota during part of his FMLA leave. Defendant did not discipline him because it determined that his leave fell within FMLA guidelines.
Several employees complained to plaintiff that Fred Sheldon was improperly clocking in employees. Plaintiff concluded that Sheldon had falsified time cards for three employees on certain dates. Plaintiff reported the employee complaints to Webb, but he did not discipline Sheldon. Under defendant's rules and regulations, Sheldon was subject to discipline (up to and including termination) for clocking in someone when that individual was not actually present at work. Reduction In Force
On five to ten occasions, Charles Barlow arrived approximately five minutes after his shift started, but Sheldon clocked him in at the start of his shift so that the company records would not reflect that he was late and he would not lose his bonus. On two or three occasions, Sheldon clocked in Don Williams so that he was shown at work on time instead of being ten or fifteen minutes late. Defendant never investigated the incidents.
In January of 2002, ElDorado had over 300 employees at its Salina plant. On January 11, 2002, Andrew Imanse, president of ElDorado, instructed Walle and Resnik to prepare an action plan to decrease certain costs including labor at the Salina and Minneapolis plants. In response, Walle and Resnik began planning a plant-wide reduction in force ("RIF") at the Salina plant.
In 2002, Thor employed some 5,000 employees nationally.
On January 14, 2002, Resnik sent Imanse a written plan for reducing overhead at ElDorado, including the "elimination of C. Richards and B. Holston due to elimination of positions." The memorandum noted that ElDorado's "layoff policy dictates that those with documented absentee or performance problems are affected first, then those with least seniority." Resnik testified, however, that he decided to eliminate plaintiff instead of Tripp because plaintiff had a higher salary. At the management meeting about the RIF, Resnik did not distribute the memorandum and no one discussed whether the RIF might involve management or HR employees.
In its reply, defendant submitted an additional copy of this memorandum which has plaintiff's name circled. Plaintiff seeks to strike this copy of the memorandum, arguing that the circle tends to add authenticity to the document. See Plaintiff's Reply To Defendant's Response To Plaintiff's Motion To Strike (Doc. #67) filed August 6, 2004 at 2-3. Plaintiff has offered no evidence that the memorandum is not authentic and she does not seek to strike the original memorandum without her name circled. Defendant has not attempted to draw any inference from the fact that plaintiff's name is circled on one of its copies. Likewise, the Court does not consider this fact in deciding defendant's motion for summary judgment. Accordingly, plaintiff's motion to strike is overruled as moot.
Within a week of January 14, 2002, Resnik spoke to plaintiff about the RIF. The RIF was ultimately based on an objective ranking system created by plaintiff, Imanse, Walle, Resnik, Bruick and Tripp. The system considered departmental seniority and attendance and disciplinary violations.
The parties have not explained the RIF ranking formula, but the RIF ranking forms submitted by defendant (which cover 24 employees) indicate that it used the following formula: An employee received one point for each year of service with the company. See Exhibit O to Defendant's Memorandum (Doc. #34). Defendant deducted points for disciplinary violations within the last six months as follows: one point for each verbal warning, two points for each written warning, three points for each final written warning and one point for each lost bonus. See id. Defendant also deducted points if an employee was late or absent in violation of the attendance policy during the prior six months, but the RIF ranking forms do not indicate how many points were deducted for each occurrence. See id.
Although the RIF ranking forms purport to use the above formula, certain handwritten notes on some of the forms suggest that defendant may have used a different formula. For example, nine of the RIF ranking forms include seniority points under the above system (one point per year) and have handwritten notations of seniority points using a system where each year constitutes only a half point. In addition, two of the RIF ranking forms (including plaintiff's) have a line drawn through the reference to "in the last 6 months" for disciplinary violations and substitute the handwritten notation "2 yrs."
On January 27, 2002, plaintiff prepared ranking forms to implement the RIF. No ranking forms were prepared for management or HR employees. Based on the ranking forms, Bruick decided who was going to be affected by the RIF.
On January 29, 2002, Resnik told plaintiff and Tripp that defendant had not decided how the RIF might affect the staffing level in HR. He also said that defendant would delay the RIF's impact on HR until the rest of the RIF was implemented because both plaintiff and Tripp were necessary to make sure that the RIF was appropriately implemented. Based on the meeting and the fact that defendant had laid off employees in other departments, Tripp assumed that defendant was going to lay off someone in HR and, because she had less seniority, Tripp assumed that it would be her. At that time, plaintiff was not worried that she was going to lose her job because she had more seniority.
By the end of January of 2002, defendant had terminated 38 employees as part of the RIF at the Salina plant. Plaintiff believed that the ranking system which she helped to devise was fair and that defendant administered it evenhandedly. Several times after January of 2002, plaintiff and/or Tripp joked with each other that "we're doing all this paperwork, and then they're going to get rid of one of us."
Although plaintiff was aware of defendant's procedure for sexual harassment and discrimination complaints, she did not file any internal complaints of discrimination. On February 12, 2002, however, plaintiff filed a complaint with the Kansas Human Rights Commission ("KHRC"), alleging that because of her sex, defendant (1) excluded her from weekly management meetings, (2) disciplined her more severely for Gaither's funeral leave report; (3) paid her less and (4) subjected her to a hostile work environment. On February 14, 2002, ElDorado received a copy of the complaint, and Resnik and Walle knew about it.
After February 14, 2002, Resnik met Tripp at a restaurant to talk about plaintiff. Tripp found it unusual that Resnik wanted to meet her off premises at lunch to discuss plaintiff. Resnik asked Tripp whether she felt that defendant had discriminated against plaintiff. Tripp said no.
On February 18, 2002, Resnik sent a memo to plaintiff and Tripp, advising them that "corporate has chosen to delay its decision with regard to staffing levels in the HR department for at least another sixty days." At that time, plaintiff thought that Resnik was trying to obtain an additional employee in HR.
Sometime after February 18, 2002, Imanse determined that one employee from HR should be laid off. Resnik asked Tripp for ranking forms for both her and plaintiff. Tripp gave Resnik blank forms and both her personnel file and plaintiff's. By March 5, 2002, Resnik had determined that one employee from HR would be laid off and that under the RIF ranking formula, that employee would be plaintiff. See Resnik Depo. at 213-15.
Bruick disagreed with Imanse's conclusion that given the reduction of employees in other departments, defendant could afford to lay off one HR employee. See Bruick Depo. at 34-35.
A few days before April 19, 2002, Resnik notified Bruick that he was going to terminate plaintiff's employment. See Bruick Depo. at 37. On April 19, 2002, Resnik and Walle met with plaintiff and Tripp and told them that effective immediately, plaintiff was terminated because she scored lower under the RIF ranking formula. Plaintiff was the only management-level employee who was terminated because of the RIF. Before April 19, 2002, no one told plaintiff or Tripp that anyone in HR or management would be affected by the RIF. Defendant eliminated three other management positions, but it reassigned the employees in those positions (who were males) to the departments where they had worked before they assumed management positions.
Resnik apparently used a different RIF ranking formula as to plaintiff and Tripp than that used in the RIF of January of 2002. Plaintiff does not claim that the RIF ranking formula used by Resnik in April of 2002 was improper or pretextual, but neither party has provided that formula or explained why that formula was different than the one used in January of 2002. Under the ranking formula used on the forms for plaintiff and Tripp (dated January 27, 2002), their scores were equal — zero. See Exhibit O to Defendant's Memorandum (Doc. #34). Plaintiff received four points based on her seniority, but had four points deducted for her disciplinary violation in June of 2001. Tripp had zero points based on seniority and zero points deducted for disciplinary violations.
Tripp assumed plaintiff's duties after her termination. Her title, however, remained as assistant HR director, a non-management position. Two females applied for the HR director position, but the position remained unfilled until January of 2003 when ElDorado hired Jim Higbee. ElDorado considers Higbee a part of "middle management." Higbee attends weekly management meetings because of his expertise and experience in product-oriented areas.
Analysis
I. Disparate TreatmentPlaintiff alleges that because of her sex, defendant (1) excluded her from weekly management meetings, (2) disciplined her more severely for Gaither's funeral leave report, (3) paid her less and (4) terminated her employment. See Pretrial Order (Doc. #32) at 9-10, 13. Defendant contends that it is entitled to summary judgment because plaintiff cannot establish a prima facie case of disparate treatment. As to each claim, plaintiff may demonstrate a prima facie case by showing that (1) she belongs to a protected class; (2) she suffered an adverse employment action; and (3) the adverse employment action occurred under circumstances which give rise to an inference of discrimination. See Hysten v. Burlington N. Santa Fe R.R. Co., 296 F.3d 1177, 1181 (10th Cir. 2002).
The Court applies the same standards and burdens to claims under Title VII and the KAAD. See Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n. 3 (10th Cir. 1997); Cowan v. Unified Sch. Dist. 501, 316 F. Supp.2d 1061, 1067 n. 1 (D. Kan. 2004); Lewis v. Std. Motor Prods., Inc., 203 F. Supp.2d 1228, 1233 n. 13 (D. Kan. 2002). Accordingly, the Court's analysis on plaintiff's disparate treatment, hostile work environment and retaliation claims applies equally to plaintiff's claims under Title VII and the KAAD.
Plaintiff's establishment of a prima facie case creates a presumption of unlawful discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). After plaintiff has established a prima facie case, the burden shifts to defendant to produce evidence that it took the adverse employment action for a legitimate nondiscriminatory reason. Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Defendant must articulate and produce some evidence that it took each adverse action for a "facially legitimate and nondiscriminatory reason."Aramburu, 112 F.3d at 1403.
Defendant argues that it is entitled to summary judgment because (1) it excluded plaintiff from weekly management meetings only when HR issues were not discussed; (2) it disciplined plaintiff for Gaither's false funeral leave report because as the HR director, she was expected to correct company leave records when she knew they were false; (3) plaintiff and Gaither received essentially identical punishment for the false funeral leave report; (4) plaintiff's pay was reasonable; and (5) it terminated plaintiff as part of the RIF. By these arguments, defendant purports to challenge plaintiff's prima facie case of disparate treatment; in fact, however, defendant goes beyond the prima facie case issue and purports to state legitimate nondiscriminatory reasons for its actions. As to plaintiff's first, second and fourth disparate treatment claims (related to management meetings, the funeral leave report by Gaither and plaintiff's termination), the Court therefore assumes that plaintiff has established a prima facie case and that defendant has articulated a legitimate, nondiscriminatory reason for each action. As to these three claims, the presumption of discrimination therefore drops from the case and plaintiff must establish by a preponderance of the evidence that the proffered reason was not the true reason for the employment decision. Id. Plaintiff may show pretext by establishing either that a discriminatory reason more likely motivated defendant or that defendant's explanations are unworthy of credence. Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994).
As to plaintiff's third disparate treatment claim (related to her pay), the Court addresses below defendant's argument that plaintiff cannot establish a prima facie case.
Plaintiff can show pretext by pointing to `such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). While this burden is not onerous, it is also not empty or perfunctory. Id. at 1323-24. A plaintiff typically makes a showing of pretext in one of three ways:(1) with evidence that defendant's stated reason for the adverse employment action was false; (2) with evidence that defendant acted contrary to a written company policy; or (3) with evidence that defendant acted contrary to unwritten policy or company practice when making the adverse employment decision affecting plaintiff. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). A plaintiff who wishes to show that defendant acted contrary to unwritten policy or company practice often does so by providing evidence that defendant treated her differently from similarly-situated employees who violated work rules of comparable seriousness. See Aramburu, 112 F.3d at 1404.
A. Weekly Management Meetings
Defendant argues that it excluded plaintiff from weekly management meetings only when HR issues were not discussed. Plaintiff has presented evidence, however, that (1) HR issues were discussed each week; (2) Bruick said that it was important for plaintiff to be at such meetings; and (3) Higbee, who assumed plaintiff's position in January of 2003, attended the weekly meetings. Plaintiff has presented sufficient evidence for a reasonable jury to conclude that defendant's stated reason for excluding her from weekly management meetings is false. The Court therefore overrules defendant's motion for summary judgment on this claim.
At this stage, defendant does not dispute that excluding plaintiff from management meetings constituted adverse employment action.
B. Discipline For False Leave Report
Defendant argues that (1) it disciplined plaintiff for Gaither's false leave report because as HR director, she was expected to correct company leave records when she knew they were false; and (2) plaintiff and Gaither received essentially identical punishment. See Defendant's Memorandum (Doc. #34) at 19. Plaintiff argues that her discipline was harsher than the discipline which male employees received for more serious incidents. Plaintiff points to the following incidents:
1. Merry told DOL investigator that he would not hire women, but he received only a final written warning with no loss of pay.
2. Shortly after the birth of his child, Jones attended a motorcycle rally in Sturgis, South Dakota while on FMLA leave. Jones received no discipline.
3. Several employees complained about sexual harassment by Bertrand, but he received no formal discipline.
4. Sheldon clocked in employees before they arrived at work, but he did not receive formal discipline.Plaintiff's Response (Doc. #41) at 52-53. In contrast, plaintiff received a final written warning and lost an $800 bonus.
As explained above, plaintiff may show pretext by evidence that defendant treated her differently from similarly-situated, nonprotected employees who violated work rules of comparable seriousness. An employee is similarly situated to plaintiff if the employee deals with the same supervisor and is subject to the "same standards governing performance evaluation and discipline."Aramburu, 112 F.3d at 1404 (internal quotations and citation omitted). In determining whether plaintiff and the intended comparable employees are similarly situated, the Court also compares the relevant employment circumstances, such as work history and company policies. Id.
Not every difference in treatment, of course, will establish a discriminatory intent. Title VII does not make unexplained differences in treatment per se illegal nor does it make inconsistent or irrational employment practices illegal. It prohibits only intentional discrimination based upon an employee's protected class characteristics. Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations. . . . What the law does require is that an employer not discriminate against an employee on the basis of the employee's protected class characteristics.Kendrick at 1232 (quoting E.E.O.C. v. Flasher, 986 F.2d 1312 1319 (10th Cir. 1992)). Differences in treatment that are trivial or accidental or explained by a nondiscriminatory motive will not sustain a claim of pretext. See id. at 1320.
Plaintiff maintains that defendant's stated reason for her discipline is pretextual because defendant disciplined her more severely than it disciplined male employees in the above incidents. The most similar incident involved Sheldon, a member of management who clocked in employees before they had arrived at work. Viewing the evidence in the light most favorable to plaintiff, Sheldon engaged in this practice some 18 times for four different employees who were five to ten minutes late. Under defendant's policies, a supervisor was subject to discipline up to and including termination for clocking in someone who was not actually present at work. Defendant does not dispute that it did not discipline Sheldon and it does not explain whether it even investigated his conduct. Defendant simply has not explained why it did not discipline Sheldon.
Defendant notes that Sheldon denied clocking employees in early, but it does not state what conclusion (if any) it reached on the issue.
Defendant argues that plaintiff's discipline was not discriminatory because she received the same discipline as Gaither, who falsely reported his leave. A reasonable jury, however, could find that plaintiff's failure to correct the false funeral leave report is more comparable to the conduct of Sheldon, another member of management, who falsified time cards. In fact, a jury could find that Sheldon's conduct was more egregious because he falsified records, while plaintiff simply failed to correct information which she knew was false. In sum, a reasonable jury could find that defendant's stated reason for disciplining plaintiff is false. The Court therefore overrules defendant's motion for summary judgment on this claim.
C. Unequal Pay
Defendant argues that plaintiff cannot establish a prima facie case because her pay was reasonable. The Court construes defendant's argument as an attack on the third element of plaintiff's prima facie case, i.e. that plaintiff's lower pay occurred under circumstances which give rise to an inference of discrimination. See Hysten, 296 F.3d at 1181. As to wage discrimination claims under Title VII, plaintiff can satisfy the third element of a prima facie case by showing that she occupied a job similar to that of higher paid employees. Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1362-63 (10th Cir. 1997); Mehus v. Emporia State Univ., 222 F.R.D. 455, 481 (D. Kan. 2004). Plaintiff has presented sufficient evidence to satisfy her prima facie burden on this issue. Plaintiff's expert witness, Gloria Wall, opined that the HR director position should have been classified as middle management. In addition, when defendant hired a new HR director in January of 2003, it classified him as middle management. All members of middle management were male and received higher salaries than plaintiff. Therefore plaintiff has presented sufficient evidence from which a reasonable jury could infer that defendant paid her less because of her sex. See Tex. Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (plaintiff's burden of showing prima facie case is not onerous). The Court therefore overrules defendant's motion for summary judgment on this claim.
D. Termination
Defendant asserts that it is entitled to summary judgment because it terminated plaintiff for a legitimate nondiscriminatory reason, i.e. the RIF. See Defendant's Memorandum (Doc. #34) at 18, 20. As to her termination, plaintiff has presented evidence only as to retaliation. She has not argued or presented evidence that sex was a motivating factor in the actual decision to terminate her employment. See Plaintiff's Response (Doc. #41) at 54. Therefore, defendant's motion for summary judgment on this disparate treatment claim is uncontested. For this reason and substantially the reasons set forth in defendant's memorandum in support of its motion for summary judgment, the Court sustains defendant's motion on that claim.
As explained below, plaintiff has presented sufficient evidence to withstand defendant's motion for summary judgment on her claim that defendant terminated her in retaliation for the filing of her KHRC complaint.
If plaintiff prevails on her claim that her discipline in June of 2001 was motivated by sex, plaintiff may be able to recover damages based on her termination if the discipline lowered her score under the RIF ranking formula.
II. Hostile Work Environment
Under Title VII of the Civil Rights Act of 1964, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff may establish a violation of Title VII by proving that discrimination based on sex created a "hostile or abusive work environment."Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish a prima facie case of hostile work environment under Title VII, plaintiff must show that: (1) she is a member of a protected class; (2) the conduct in question was unwelcome; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (5) some basis exists for imputing liability to the employer. Brandau v. State of Kansas, 968 F. Supp. 1416 (D. Kan. 1997).
To prevail under a hostile work environment theory, plaintiff must show that sexually-oriented conduct had the purpose or effect of unreasonably interfering with her work performance or created an intimidating, hostile or offensive working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The existence of such an environment can only be determined by looking at the totality of the circumstances present in the workplace, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id.; see also Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Court evaluates these factors from both a subjective and an objective viewpoint. Harris, 510 U.S. at 21. The Court must consider not only the effect the discriminatory conduct actually had on plaintiff, but also the impact it likely would have had on a reasonable employee in plaintiff's position. See Davis v. United States Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998).
Defendant asserts that it is entitled to summary judgment because plaintiff has presented no evidence of a hostile work environment and that no critical remarks by supervisors were based on sex. Plaintiff presents the following evidence of a hostile work environment:
1. Defendant disciplined her more harshly for the false funeral leave report because of her sex.
2. Defendant gave her a negative comment on a performance review for her use of profanity even though male members of management used profanity.
3. After defendant disciplined her in June of 2001, employees went to Tripp or directly to Resnik or Walle for situations which plaintiff ordinarily would have handled as HR director.
4. Merry and Webb did not value plaintiff's opinion on hiring suggestions.
5. Webb made comments which belittled plaintiff. Webb would question plaintiff on something that she had not recorded correctly or had not done in a timely manner and would state words to the effect of "What the hell are you doing up there."
6. After defendant disciplined plaintiff for the false funeral leave report, Walle told plaintiff something to the effect that he was disappointed that she was involved with or dating Gaither.Plaintiff's Response (Doc. #41) at 55-56.
Plaintiff's evidence is utterly insufficient for a reasonable jury to conclude that any harassment was based on sex or that any harassment was so severe or pervasive as to create an abusive working environment. A hostile or abusive work environment requires that "the harassing conduct be sufficiently pervasive or sufficiently severe to alter the terms, conditions, or privileges of [p]laintiff's employment." Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997). "[I]solated incidents of harassment, while inappropriate and boorish, do not constitute pervasive conduct." Id. at 1414;see Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1175 (10th Cir. 1996) (one isolated comment and use of term "girlie" not pervasive harassment). No reasonable jury would find that defendant subjected plaintiff to a hostile work environment, based on these isolated incidents outlined by plaintiff. The Court therefore sustains defendant's motion for summary judgment on plaintiff's hostile work environment claim.
III. Retaliation
Plaintiff alleges that after she filed her KHRC complaint, defendant retaliated by terminating her employment. To establish a prima facie case of retaliation under Title VII, plaintiff must show that (1) she engaged in protected opposition to Title VII discrimination; (2)she suffered an adverse employment action contemporaneous with or subsequent to such opposition or participation; and (3) a casual connection links the protected activity and the adverse employment action. See Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir. 1998), cert. denied, 526 U.S. 1039 (1999); Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir.), cert. denied, 522 U.S. 1028 (1997). Plaintiff can establish the causal connection by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.),cert. denied, 459 U.S. 1071 (1982).
Defendant argues that plaintiff cannot satisfy the third element of her prima facie case: a causal link between plaintiff's protected activity and her termination. Plaintiff argues that defendant terminated her employment 62 days after it received her KHRC complaint, and the Court first addresses whether the two month period by itself is sufficient to satisfy the causation element of plaintiff's prima facie case. On one hand, the Tenth Circuit has held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. See Ramirez v. Okla. Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994). On the other hand, it has held that a three-month period, standing alone, is insufficient. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997). The Tenth Circuit has declined to address periods of time between these two boundaries. See Freeman v. Santa Fe Ry., 229 F.3d 1163, 2000 WL 1227863, at *3 n. 6 (10th Cir. Aug. 30, 2000) (assuming that two months and six days is sufficient); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (assuming that two months and one week is sufficient). The Ninth Circuit, however, has held that a two-month period, standing alone, is sufficient to establish causation. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989), cert. denied, 494 U.S. 1056 (1990). Under Anderson, the Court assumes that two months is sufficient to establish causation. See Anderson, 181 F.3d at 1179.
In addition to the two-month period between plaintiff's protected activity and her termination, defendant made the decision to terminate one employee from HR several days after it received plaintiff's administrative complaint. Sometime after February 18, 2002, Imanse determined that one employee from HR should be laid off. Resnik asked Tripp for ranking forms for both her and plaintiff. Tripp gave Resnik blank forms and both her personnel file and plaintiff's. By March 5, 2002, Resnik had determined that one employee from HR would be laid off and that under the RIF ranking formula, that employee would be plaintiff. See Resnik Depo. at 213-15. Therefore, the period between the filing of plaintiff's KHRC complaint and the decision to terminate plaintiff's employment was less than one month. Plaintiff has presented sufficient evidence to satisfy her prima facie burden on her retaliation claim. See Ramirez, 41 F.3d at 596 (one and one-half month period between protected activity and adverse action may, by itself, establish causation);Burrus, 683 F.2d at 343 (same). The Court therefore overrules defendant's motion for summary judgment on this issue.
As to plaintiff's retaliation claim, defendant has not offered a legitimate, nondiscriminatory reason for plaintiff's termination. Based on defendant's briefing of the disparate treatment claims, however, defendant obviously asserts that it terminated plaintiff's employment because of the RIF ranking formula — a reason which equally applies to plaintiff's retaliation claim. Even if defendant had properly raised this argument in its motion for summary judgment, however, plaintiff has presented sufficient evidence for a jury to find that defendant's stated reason is false.
In the RIF context, courts typically consider three types of evidence to determine pretext: (1) evidence that the termination of the employee is inconsistent with the employer's criteria; (2) evidence that the employer's evaluation of the employee was falsified to cause termination; or (3) evidence that the RIF is more generally pretextual. Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir.), cert. denied, 531 U.S. 876 (2000). These typical methods do not foreclose the possibility of others. Id.
A reasonable jury could find that the RIF ranking formula, which defendant purportedly relied on, was a pretext for retaliation. Defendant made final subjective determinations of which departments and employees would be affected by the RIF after plaintiff filed her KHRC complaint. The Court views the evidence in the light most favorable to plaintiff. So viewed, it appears that within two weeks after plaintiff filed her KHRC complaint, Imanse made the subjective decision that the RIF would apply to HR (including its only management employee — plaintiff).See Annett v. Univ. of Kan., 371 F.3d 1233, 1240 (10th Cir. 2004) (close temporal proximity is factor in showing pretext). Nothing in the RIF ranking formula dictated that one employee from HR had to be laid off. In fact, Bruick disagreed with Imanse's conclusion that given the reduction of employees in other departments, defendant could afford to lay off an HR employee. See Bruick Depo. at 34-35. In addition, viewing the evidence in the light most favorable to plaintiff, plaintiff and Tripp had equal scores under the RIF ranking formula. Defendant has not explained how the RIF ranking formula led it to terminate plaintiff instead of Tripp. Finally, the printed RIF ranking forms specify that only the prior six months are considered with regard to disciplinary violations. On plaintiff's RIF ranking form, however, the six month period is crossed out and "2 yrs" has been substituted in writing. Using a six month period, plaintiff would not have received any deductions for disciplinary violations and she would have received a higher ranking than Tripp. In sum, a reasonable jury could find that defendant's stated reason for plaintiff's termination is false. Therefore the Court overrules defendant's motion for summary judgment on this issue.
On January 14, 2002, before plaintiff had filed her KHRC complaint, Resnik had identified plaintiff as an individual to terminate under the RIF.
Plaintiff does not raise the issue in her response, but the Court cannot ignore this obvious discrepancy. The Court recognizes that Resnik's testimony suggests that defendant used a formula which assigned only a half point for each year of seniority, see Resnik Depo. at 215, but that testimony is inconsistent with the only ranking forms in the record for plaintiff and Tripp.
Plaintiff also did not raise this issue.
IV. Equal Pay Act
Generally, the EPA prohibits wage discrimination between employees on the basis of sex "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions" at the same establishment. 29 U.S.C. § 206(d)(1). The jobs need not be identical, but only substantially equal. 29 C.F.R. § 1620.13(a).
To establish a prima facie case under the EPA, plaintiff has the burden of proving that (1) she was performing work which was substantially equal to that of male employees, considering the skills, duties, supervision, effort and responsibilities of the jobs; (2) the work was performed in conditions which were basically the same; and (3) the male employees were paid more under such circumstances. Sprague, 129 F.3d at 1364; Tidwell v. Fort Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993). If plaintiff establishes a prima facie case under the EPA, the burden shifts to defendant to establish that the pay disparity is the result of (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a factor other than sex. 29 U.S.C. § 206(d)(1). If defendant fails in this respect, plaintiff will prevail on her prima facie case. Id. Thus, under the EPA, "the onus is on the employer to establish that the pay differential was premised on a factor other than sex." Tidwell, 989 F.2d at 409.
Plaintiff alleges that defendant paid her less than similarly situated males for substantially equal work which required similar skills, duties, supervision and responsibility, and was performed under similar working conditions. See Pretrial Order (Doc. #32) at 14. Defendant seeks summary judgment, arguing that plaintiff cannot make out a prima facie case because (1) her pay was in line with other employees in lower management and other HR professionals in the Salina market; (2) non-discriminatory factors such as plaintiff's experience and responsibilities dictated her pay; and (3) plaintiff's pay was reasonable in comparison to production supervisors. Defendant does not explain how its arguments relate to any elements of plaintiff's prima facie case, but the Court nonetheless addresses each argument in turn.
Defendant first argues that plaintiff's pay was reasonable, compared to pay of lower management and HR professionals in Salina. As discussed below, however, plaintiff compares herself to members of middle management. Defendant has not argued or conclusively established that plaintiff's work was not substantially equal to the work of male production supervisors in middle management. In any event, plaintiff has presented sufficient evidence to meet her prima facie burden. Plaintiff's expert witness opined that the HR director position should have been classified as middle management. In addition, when defendant hired a new HR director in January of 2003, it classified him as middle management. All members of middle management were male, and they received higher salaries than plaintiff. For these reasons, defendant's motion for summary judgment is overruled on this issue. See Thomas v. Bd. of Educ., 1997 WL 723437, at *9 (D. Kan. Oct. 31, 1997) (inquiry regarding substantial equality is factual determination, and summary judgment will therefore often be inappropriate) (citing Fallon v. Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989)).
Defendant's remaining two arguments focus on whether it has satisfied its burden of proof to show that any pay disparity is the result of (1) a seniority system; (2)a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a factor other than sex. 29 U.S.C. § 206(d)(1). Defendant has not provided sufficient evidence for the Court to find as a matter of law that nondiscriminatory factors such as plaintiff's experience and responsibilities dictated her pay and that plaintiff's pay was reasonable in comparison to production supervisors. Its burden at this stage is heavy. Klindt v. Honeywell Int'l Inc., 303 F. Supp.2d 1206, 1219 (D. Kan. 2004) (quoting Stanziale v. Jargowsky, 200 F.3d 101, 108 (3d Cir. 2000)). Defendant's burden with respect to plaintiff's EPA claim differs significantly from its burden with respect to plaintiff's Title VII claim. Klindt, 303 F. Supp.2d at 1222. Because it bears the burden of proof at trial, defendant may prevail on summary judgment only if it proves its affirmative defense "so clearly that no rational jury could find to the contrary." Id. at 1219 (quoting Stanziale, 200 F.3d at 108). Moreover, in proving its affirmative defense, defendant must submit evidence from which a reasonable jury could conclude not merely that defendant's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity. Id.
Defendant has not attempted to explain how specific factors such as seniority and product knowledge determined middle management salaries. Therefore the record reveals genuine issues of material fact whether defendant used a system based on factors other than sex to set and increase salaries and if so, precisely how the alleged system operated. The Court therefore overrules defendant's motion for summary judgment on this claim.
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #33) filed May 10, 2004 be and hereby is SUSTAINED in part. Defendant's motion is sustained as to (1) plaintiff's claim for disparate treatment based on her termination and (2) plaintiff's claim for hostile work environment based on sex. Defendant's motion is otherwise overruled.
IT IS FURTHER ORDERED that Plaintiff's Motion To Strike (Doc. #62) filed July 9, 2004 be and hereby is OVERRULED as moot.