Opinion
CIVIL ACTION NO. 01-6969.
July 15, 2003
MEMORANDUM
Unless otherwise indicated, the facts set forth above are uncontested.
In 1983, Cherie M. Rotteveel ("plaintiff") was hired by General Electric Astrospace as a Receivable Specialist at an annual salary of $20,400.00. In 1995, after a series of corporate transactions, Lockheed Martin Corporation ("Lockheed") became plaintiff's employer. When plaintiff came under Lockheed's employ, she was making an annual salary of approximately $71,000. That same year, Lockheed announced that its East Windsor, New Jersey and Valley Forge, Pennsylvania facilities would be closing in the near future. Soon thereafter, Lockheed announced the opening of a new facility in Newtown, Pennsylvania called the Communications and Power Center ("CPC"). In June 1996, plaintiff was promoted to Manager of Financial Operations and Analysis in the Business Operations Unit at Lockheed's East Windsor, New Jersey facility with an annual salary of $75,950.00. Once the Newtown, Pennsylvania facility had opened, plaintiff was transferred there with the same job title. Her salary was raised to $81,300.00. At the time, plaintiff was the only female employed in the Business Operations Unit.
Lockheed is a technology company engaged in research, design, development, manufacturing and integration of advanced technology systems, products and services for government and commercial customers around the world.
In June 1998, Lockheed decided to reorganize the company's management structure by "de-layering" certain positions company-wide. As a result, a number of Lockheed employees, both male and female, including plaintiff, were re-graded and retitled from salary grade P6 "Manager I" to salary grade P5 "Individual Contributors." Despite the salary regrading, plaintiff's base salary remained unchanged.
Later that same year, Lockheed embarked on a major computerization project called IRIS/SAP. In September 1998, plaintiff was assigned to the IRIS/SAP project. Plaintiff was the only member of her unit assigned to the IRIS/SAP project. This assignment was largely full-time. As a result, a number of plaintiff's previous duties were assumed by other members of her former unit. In turn, plaintiff was often not included in her former unit's business meetings. However, plaintiff's salary and titled remained unchanged during her assignment to the IRIS/SAP project.
In January 1999, Jack Mather ("Mather"), Director of Business Operations and plaintiff's former direct supervisor, accepted a position within another division of Lockheed. Plaintiff was not asked to interview for the position Mather vacated. Plaintiff, had worked under Mather for over two years and had interviewed for Mather's position four years earlier. One month later, Lindsey Thompson, CPC's Vice President of Finance and Business Operations, selected Jeffery Auletto ("Auletto") to replace Mather.
In May 1999, plaintiff went on maternity leave to have her third child. Plaintiff returned from maternity leave about three months later. Lockheed alleges that, upon returning from maternity leave, plaintiff was returned to her former position without incident. Plaintiff claims that this is not so.
Instead, plaintiff alleges that she was "forced" to remain on the IRIS/SAP project. Plaintiff further alleges that upon her return from maternity leave, she was kept on the IRIS/SAP project because, under company policy, since she was separated from her original unit, this factor increased the likelihood that she would be laid-off.
In April 2000, plaintiff applied for an available position as "Manager I, Cost and Schedule Control." Plaintiff was one of four females out of thirteen applicants. Plaintiff was also one of only five applicants who were granted an interview for the position. The interviews were conducted by three Lockheed Managers and a representative from Human Resources (the "interviewers"). Following the interviews, the interviewers rated Janet Adamo ("Adamo") highest and recommended her for the job. Plaintiff scored second to Adamo. Lindsey Thompson followed the interviewers' recommendation and the position was awarded to Adamo. Plaintiff alleges, however, that Janet Adamo had an excessive absenteeism record and that Lindsey Thomson actively and purposefully concealed the fact of Adamo's absenteeism from the interviewers.
On June 12, 2000, Auletto performed a scheduled annual performance review of plaintiff. Although plaintiff received an overall rating of "11" on a scale of "8" to "12," with "12" being the highest possible score, plaintiff took exception to a categorical rating of "Fully Effective" for the category of "Interpersonal Relationships" and "Highly Effective" for the category entitled "Quantity of Work". Plaintiff contends that she deserved a rating of "Exceptional" in both of these categories. Plaintiff also took issue with a comment on her review stating, "Cherie needs to work on her approach with others, as to avoid confrontational perceptions."
At about the same time as plaintiff's review, plaintiff was restored to her original pre-"de-layering" pay grade and title.
Thereafter, plaintiff prepared a rebuttal to Mr. Auletto's review, but was not permitted to add this rebuttal to her personnel file. Lockheed alleges that the reason plaintiff was not allowed to add her rebuttal to her personnel file was because it contained details of a confidential investigation about another Lockheed employee.
In March 2001, Auletto accepted a promotion to Lockheed's corporate offices in Bethesda, Maryland. As a result, Auletto approached plaintiff and asked her whether she would be interested in succeeding him as Manager of Business Operations. Before plaintiff responded, Auletto went ahead and submitted plaintiff's name on a "short-list" of candidates whom he believed were qualified for the position. After the list was submitted, plaintiff informed Mr. Auletto that she did not wish to be considered for the position. In April 2001, the position was awarded to James Pennington ("Pennington").
Plaintiff admits that she told Auletto that she did not wish to be considered for the position. Plaintiff alleges, however, that she was deliberately misled by Auletto as to the nature of the available position in an effort to prevent her from applying for it. Specifically, plaintiff alleges that Auletto deliberately concealed the fact that the position constituted a promotion from salary grade "P6" to "P6A," which results in an opportunity for management incentive compensation as well as other benefits.
On August 1, 2001, Pennington performed a scheduled annual performance review of plaintiff. Plaintiff again received an overall rating of "11" on a scale of "8" to "12." None of plaintiff's peers received a higher rating.
Later that month, plaintiff was asked if she would be interested in a position as Manager of Financial Planning and Analysis. Plaintiff indicated that she would be interested under a number of conditions, including that she be provided with a minimum staff of 9 (including a Manager position). Defendant denied plaintiff's requests and the position was ultimately awarded to Jay Peterson ("Peterson"), a former Lockheed employee who, before returning to Lockheed to accept the position of Manager of Financial Planning and Analysis, was employed by L3 Communications Company ("L3"). Peterson did not make the staffing demands that plaintiff made. Plaintiff contends that, although she was not offered a pay raise if awarded the position, Peterson was given one. Lockheed answers that the position was given to Peterson because he was better qualified, he did not make the same staffing demands as plaintiff and, once he was given the position, he was not given a pay raise.
While employed by L3, Peterson had been earning a base salary of $110,000, plus a $27,000 bonus, for a total of $137,000. Upon returning to Lockheed, Peterson was given a total annual salary of $123,200. Thus, defendant contends that Peterson actually received a pay-cut when he returned to Lockheed. Plaintiff, on the other hand, argues that because Peterson's base salary at Lockheed is greater than his base salary at L3, Peterson received a raise, regardless of what his total earnings were at L3.
At the time the position was offered to plaintiff, she was earning a base salary of $98,675. Although the parties are in disagreement as to whether Lockheed precluded plaintiff from obtaining a raise, if offered the position, it is uncontested that she was not offered a raise by Lockheed and that Peterson was paid at least $24,000 more than plaintiff upon accepting the position.
On November 1, 2001, plaintiff was offered and accepted the position of Program Finance Manager.
On March 5, 2002, plaintiff approached her supervisors and complained that she believed her salary was lowest among those of her peers in the finance department. Plaintiff's peers in the finance department were all males. In response to plaintiff's complaint, plaintiff's supervisors recommended that plaintiff receive a ten-percent raise in salary to be applied retroactively for four months. However, the raise ultimately approved by Lockheed was for only six-percent and was not applied retroactively. Despite this raise, as well as consistent raises throughout plaintiff's employment with Lockheed, plaintiff's annual salary, which is presently over $100,000, remains, according to plaintiff, less than those paid to male employees similarly situated.
Up to the time of the filing of the Complaint in this case, plaintiff had filed a total of four charges with the EEOC on December 6, 1999, June 12, 2000, May 10, 2001, December 4, 2001. Plaintiff has received a Notice of Right to Sue for these four charges.
Subsequent to the filing of the Complaint in the instant action, plaintiff filed three other charges with the EEOC on January 25, 2002, April 17, 2002 and June 25, 2002. Plaintiff, however, has not produced a Notice of Right to Sue as to these charges and, therefore, these charges are not before the court.
On December 26, 2001, plaintiff filed the instant suit against Lockheed alleging sex discrimination and retaliation under: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000eet seq. ("Title VII"); (2) 42 U.S.C. § 1981a; and (3) the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951et seq. ("PHRA"). Presently before the court is Lockheed's motion for summary judgment. For the reasons that follow, the motion will be granted in part and denied in part.
The PHRA follows the same burden-shifting formula and standards as claims brought under Title VII. See Harris v. SmithKline Beecham Corp., 27 F. Supp.2d 569, 576 (E.D. Pa. 1998) (applying the same standards to Title VII, Section 1981, and PHRA claims), aff'd, 203 F.3d 816 (3d Cir. 1999). Thus, the court's analysis, findings and conclusions herein apply to plaintiff's claims under the Title VII and the PHRA.
Furthermore, Section 1981a does not create an independent cause of action, but rather, provides for the recovery of additional damages in an employment discrimination claim. See Varner v. Illinois State Univ., 150 F.3d 706, 718 (7th Cir. 1998); Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (by its plain language § 1981a merely provides additional remedies for unlawful intentional employment discrimination);Kozlowski v. Extendicare Health Services, Inc., 2000 WL 193502, *1 n. 1 (E.D. Pa. Feb. 17, 2000); Perry v. Dallas Independent School Dist., 1998 WL 614668, *1 n. 1 (N.D. Tex. Sept. 23, 1998) ("[t]here is no such thing" as a "§ 1981a claim"); Powers v. Pinkerton, Inc., 28 F. Supp.2d 463, 472 (N.D. Ohio 1997), aff'd, 168 F.3d 490 (6th Cir. 1998); Presutti v. Felton Brush, Inc., 927 F. Supp. 545, 550 (N.H. 1995);Swartzbaugh v. State Farm Ins. Co., 924 F. Supp. 932, 934 (E.D. Mo. 1995); West v. Boeing Co., 851 F. Supp. 395, 398-401 n. 7 (D. Kan. 1994); McCormack v. Bennigan's, 1993 WL 293895, *2-*3 (E.D. Pa. July 30, 1993).
II. DISCUSSION
A. The Standard for Summary Judgment.
__________ A court may grant summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). A fact is "material" only if its existence or non-existence would affect outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is "genuine" only when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. In determining whether there exist genuine issues of material fact, all inferences must be drawn, and all doubts must be resolved, in favor of the non-moving party. Coreqis Ins. Co. v. Baratta Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).
Although the moving party bears the burden of demonstrating the absence of a genuine issue of material fact, in a case such as this, where the non-moving party is the plaintiff, and therefore, bears the burden of proof at trial, that party must present affirmative evidence sufficient to establish the existence of each element of his case. Id. at 306 (citingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Accordingly, a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment, see Celotex, 477 U.S. at 324, but rather, he "must go beyond the pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. U.P.S., 214 F.3d 402, 407 (3d Cir. 2000).
B. Plaintiff's Claims Regarding Her 1998 "De-layering" and Subsequent Assignment to the IRIS/SAP project, the Selection of Jeffery Auletto for the Position of Director of Business Operations and Her June 12, 2000 Performance Review are Time Barred.
Under Title VII, a plaintiff must file a complaint within 300 days of the alleged discriminatory conduct. 42 U.S.C. § 2000e-5(3). Under the PHRA, a plaintiff must file with the PHRC within 180 days of the discriminatory conduct. 43 PA. CONS. STAT. ANN. § 959(h).
Plaintiff was "de-layered" in June 1998 and assigned to the IRIS/SAP project in September 1998. Jeffery Auletto was selected for the position of Director of Business Operations in February of 1999. Plaintiff, however, did not file her first EEOC charge until December 6, 1999. Additionally, plaintiff's EEOC charge relating to her allegedly discriminatory June 12, 2000 performance review by Auletto was not filed until May 10, 2001. Thus, it appears that plaintiff's claims relating to these actions are statutorily time barred.
Plaintiff contends that these claims are not time barred. First, plaintiff argues that the continuing violation theory is applicable to her claims regarding her "de-layering," her assignment to the IRIS/SAP project and the selection of Jeffery Auletto for the position of Director of Business Operations, and that, therefore, these claims are not time barred.
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113-114 (2002), the Supreme Court specifically rejected the applicability of the continuing violation theory to claims of discrimination based on discrete acts. See Morgan, 536 U.S. at 113-15 n. 7. In doing so, the Court held that:
Under the "continuing violation theory," a claim regarding an alleged discriminatory action that is "part of an ongoing practice or pattern of discrimination" is not time barred so long as part of the alleged conduct occurred within the statutory period. West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). The continuing violation theory remains viable as to claims of discrimination based on hostile work environment. See, e.g., Velez v. QVC, Inc., 227 F. Supp.2d 384, 397 (E.D. Pa. 2002).
[d]iscrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging the act. The charge, therefore, must be filed within the 180 — or 300 — day time period after the discrete discriminatory act occurred.Id. at 113.
The actions upon which plaintiff's claims are based, i.e, demotion, failure to promote, etc., each constitute separately actionable offenses under Title VII, as opposed to, for example, conduct that is only actionable when aggregated under a claim of hostile work environment. See supra note 7. Therefore, these actions constitute discrete discriminatory acts to which the continuing violation theory is inapplicable. Morgan, 536 U.S. at 114.
Second, with regards to the selection of Jeffery Auletto for the position of Director of Business Operations that was vacated by Mather, plaintiff alleges that Auletto's appointment as the permanent Director of Business Operations was not announced until September of 1999. In other words, plaintiff alleges that from February until September of 1999, Auletto served only as Mather's temporary replacement. Based on this allegation, plaintiff argues that, for the purposes of determining whether this claim was timely filed, the discriminatory conduct, i.e., promoting Auletto instead of plaintiff, should be deemed to have occurred in September. Under these circumstances, contends plaintiff, the related EEOC charge filed in December would have been filed well within the statutorily prescribed period.
In the alternative, plaintiff argues that by awarding the position to Auletto on a temporary basis until September 1999, Lockheed actively misled her in a manner that prohibited her from filing the related EEOC charge in a timely manner. Thus, argues plaintiff, the related EEOC charge should be deemed to have been timely filed under the doctrine of equitable tolling.
The doctrine of equitable tolling "functions to stop the statute of limitations from running where the claim's accrual date has already passed." Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Generally, the doctrine of equitable tolling is applicable: "(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Id.
The plaintiff, however, points to no facts of record to demonstrate that Auletto served in a temporary capacity, or that she was led to believe that Auletto served in a temporary capacity, from February 1999 until September 1999. Plaintiff's unsupported protestation that Auletto's promotion was initially temporary is insufficient, as a matter of law, to enable plaintiff to survive summary judgment on this issue.
Finally, with regards to plaintiff's June 12, 2000 performance review, plaintiff contends that, because plaintiff had already filed charges with the EEOC at the time of her June 12, 2000 review, the charge filed in connection with her review relates back to her original charge for purposes of determining whether it was timely filed. In support of this contention, plaintiff cites section 1601.12(b) of the Code of Federal Regulations ("§ 1601.12(b)") which provides:
[a] charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.29 C.F.R. § 1601.12(b).
Plaintiff argues that, her subsequent EEOC charges are no different than amendments to her original charge and that, therefore, her May 10, 2001 EEOC charge relates back to the filing of her original charge on December 6, 1999 for the purposes determining whether the charge was timely filed. This argument is without merit.
As Judge Katz has previously found:
[Section 1601.12] cannot be applied to save untimely added claims. . . . The relating-back provision is properly used where a plaintiff seeks to amend the Charge by naming a new legal theory based on the same facts as reported in the original Charge, not where, as here, a plaintiff seeks to add entirely new facts that happened after the original charge. It does not make sense to relate the added claims back to the original date of filing, because they had not even occurred yet at the time of the original filing.Van Cleve v. Nordstrom, Inc., 64 F. Supp.2d 459, 463 n. 5 (E.D. Pa. 1999) (citing Hicks v. ABT Assocs., 572 F.2d 960, 966 (3d Cir. 1978) (holding that a subsequently filed amendment to an EEOC charge relates back to the date the original charge was filed where the allegations in the amendment arise from the same acts that supported the original charge)).
Plaintiff's May 10, 2001 EEOC charge does not simply assert a claim under new legal theory based on the same actions that were reported in her previous charges, but rather, it seeks to add entirely new facts that happened after the previous charges were filed. Thus, the court finds that plaintiff's reliance on section 1601.12 is misplaced.
For the reasons stated above, the court finds that plaintiff's claims regarding her 1998 "de-layering" and subsequent assignment to the IRIS/SAP project, the selection of Jeffery Auletto for the position of Director of Business Operations and her June 12, 2000 performance review are time barred. Therefore, the court concludes that defendant is entitled to summary judgment as to these claims.
C. Plaintiff's Remaining Claims of Gender Based Discrimination and Retaliation.
1. Discrimination
To establish a prima facie case of discrimination under Title VII, a plaintiff must establish that: (1) he or she is a member of a protected class; (2) he or she is qualified for the former position; (3) he or she suffered an adverse employment action; and (4) either non-members of the protected class were treated more favorably than the plaintiff, or the circumstances of the plaintiff's termination give rise to an inference of race discrimination. Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 318- 19 (3d Cir. 2000); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999).
Once a prima facie case of discrimination has been established, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for [its actions]." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). At this stage the defendant need not persuade the court that it was "actually motivated by the proffered reasons," but need only raise a genuine issue of fact as to whether its actions were motivated by a discriminatory animus.See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).
Once the defendant satisfies this burden of production, the plaintiff must demonstrate that the defendant's stated reasons for the actions taken are pretextual. McDonnell, 411 U.S. at 804. This may be accomplished "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256.
As the Third Circuit points out, "[t]o discredit the employer's proffered reason, . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken . . ."Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Rather, the plaintiff must produce evidence that demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] nondiscriminatory reasons." Fuentes, 32 F.3d at 765 (citations and internal quotation marks omitted) (emphasis and alteration in original).
Aside from plaintiff's claims regarding her 1998 "delayering" and subsequent assignment to the IRIS/SAP project, the selection of Jeffery Auletto for the position of Director of Business Operations and her June 12, 2000 performance review, which, for the reasons stated above, must be dismissed as untimely, plaintiff alleges four other instances of gender based discrimination on the part of Lockheed. First, plaintiff alleges that her August 1, 2001 performance review, in which she received an overall rating of "11" on a scale of "8" to "12," was motivated gender based discrimination. Second, plaintiff alleges that Lockheed's failure to award her a ten-percent retroactive pay increase in March of 2002 was motivated also by discrimination. Third, plaintiff alleges that Lockheed's failure to award her the position of "Manager of Business Operations" in March 2001, which was ultimately awarded to Jim Pennington, was motivated by gender based discrimination. Fourth, similar to her third claim, plaintiff alleges that Lockheed's failure to award her the position of "Manager of Financial Planning and Analysis" in August 2001, which was ultimately awarded to Jay Peterson, was motivated by gender based discrimination.
a. Defendant is entitled to summary judgment as to plaintiff's claims of discrimination based on her August 1, 2001 performance review and Lockheed's failure to award her a ten-percent retroactive pay increase in March 2002.
Plaintiff has failed to establish that her August 1, 2001 performance review constitutes an adverse employment action and, thus, has failed to establish a prima facie case of discrimination based thereon. An adverse employment action, other than discharge or refusal to hire, "is. . . . proscribed by Title VII only if it alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affect[s] [her] status an employee. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997).
In this case, plaintiff has failed to point to any evidence that her August 1, 2001 performance review altered her compensation, terms, conditions, or privileges of employment, deprived her of employment opportunities, or otherwise had an adverse effect on her status as an employee. To the contrary, the record shows that none of plaintiff's peers received a higher performance rating than plaintiff and that plaintiff was awarded the position of "Program Finance Manager" only three months after the allegedly negative performance review. Thus, the court concludes that plaintiff has failed to establish that her August 1, 2001 performance review constitutes an adverse employment action.
Moreover, defendant is entitled to summary judgment on plaintiff's discrimination claim to the extent that it is based on Lockheed's failure to award her a ten-percent retroactive raise in March 2002. The complaint in this case was filed on December 26, 2001 and amended once on August 13, 2002 in order to add a paragraph to the complaint indicating that the plaintiff had exhausted her administrative remedies as to all claims alleged in the original complaint. Accordingly, Lockheed's failure to award plaintiff her requested raise in March 2002 is not before the court in this case.
On May 16, 2003, the plaintiff filed a motion for leave to amend the complaint to include a cause of action under the Equal Pay Act, 29 U.S.C. § 206(d). The court denied plaintiff's motion on the grounds of undue delay. (See doc. no. 47).
Additionally, it is well established that "[a] complainant may not bring a Title VII suit without having first received a right-to-sue letter" from the EEOC. In this case, plaintiff has not obtained a right to sue letter from the EEOC as to this claim.
Therefore, for the reasons stated above, the court concludes that defendant is entitled to summary judgment to the extent that plaintiff's discrimination claims are based on her August 1, 2001 performance review and Lockheed's failure to award plaintiff a ten-percent retroactive raise in March 2002.
b. There are genuine issues of material fact with regards to plaintiff's remaining claims of discrimination.
__________ With regards to plaintiff's remaining claims of discrimination based on Lockheed's failure to award her the positions of "Manager of Business Operations" in March 2001 (the "March 2001 position") and "Manager of Financial Planning and Analysis" in August 2001 (the "August 2001 position"), it is uncontested that these actions constitute adverse employment actions as defined under Title VII. It is further uncontested that the plaintiff is a member of a protected class, that she was qualified for these positions and that nonmembers of the protected class, i.e., men, were treated more favorably than plaintiff.
It is also uncontested that Lockheed has satisfied its burden to produce a legitimate nondiscriminatory and non-retaliatory reason for failing to award these positions to plaintiff. With regards to the March 2001 position, Lockheed alleges that plaintiff did not wish to be considered for this position. With regards to the August 2001 position, Lockheed alleges that this position was awarded to Peterson instead of plaintiff because Peterson did not make plaintiff's staffing demands. Thus, the only issue remaining before the court in regards to these claims is whether Lockheed's proffered reasons for these decisions are pretextual.
Viewing all facts, drawing all reasonable inferences and resolving all doubts in favor of the plaintiff, the court finds that there are genuine issues of material fact as to the issue of pretext, i.e.: (1) whether plaintiff was, in fact, actively misled with regards to the terms, conditions and privileges associated with holding the position of "Manager of Business Operations" and (2) the terms and conditions under which Peterson was awarded the "Manager of Financial Planning and Analysis" position. Therefore, the court finds that Lockheed is not entitled to summary judgment as to these claims.
2. Retaliation
Plaintiff also alleges that the above actions taken by Lockheed, as well as Lockheed's failure to award her the position of "Manager I, Cost and Schedule Control" (the "April 2000 position"), which was ultimately awarded to Janet Adamo in April 2000, were based on retaliation against plaintiff for filing her December 1999 EEOC charge. A retaliation claim under Title VII requires that the employee demonstrate that: (1) she engaged in activity protected by Title VII; (2) the employer took adverse action against the employee; and (3) there was a causal connection between the employee's participation in the protected activity and the adverse employment action. Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995).
Retaliation claims follow the same burden-shifting paradigm as discrimination cases under Title VII. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). Accordingly, as discussed above, once the plaintiff has established a prima facie case of retaliation, the burden of production shifts to the defendant "to articulate some legitimate, [nonretaliatory] reason for [its actions]." McDonnell, 411 U.S. at 802. Once the defendant satisfies the burden of production, the plaintiff must demonstrate that the defendant's stated reasons for the actions taken are pretextual. Id. at 804.
For the reasons already discussed above, the court concludes: (1) that plaintiff's claims regarding her 1998 "delayering" and subsequent assignment to the IRIS/SAP project, the selection of Jeffery Auletto for the position of Director of Business Operations and her June 12, 2000 performance review must be dismissed as untimely; (2) that defendant is entitled to summary judgment as to plaintiff's retaliation claim to the extent that it is based on Lockheed's failure to award plaintiff her requested raise in March 2002; and (3) that plaintiff have failed to establish a prima facie case of retaliation with regards to her August 1, 2001 performance review because she has failed to establish that this review constitutes an adverse employment action under Title VII.
With regards to plaintiff's claims of retaliation based on Lockheed's failure to award plaintiff the April 2000 position, the March 2001 position and the August 2001 position, it is uncontested that, by filing charges with the EEOC, she engaged in protected activity. It is also uncontested that these actions constitute adverse employment actions as defined under Title VII. Finally, it is uncontested that Lockheed has articulated legitimate non-retaliatory reasons for its actions, i.e, that Adamo was better qualified for the April 2000 position, that plaintiff indicated that she did not wish to be considered for the March 2001 position and that Peterson did not make the same staffing demands as plaintiff with regards to the August 2001 position.
Accordingly, the only issues that remain before the court with regards to these claims are whether there exists a causal connection between plaintiff's filing charges with the EEOC and the subsequent actions taken by Lockheed, and if so, whether Lockheed's proffered reasons for taking these actions are pretextual. Viewing all facts, drawing all reasonable inferences and resolving all doubts in favor of the plaintiff, the court finds that there are genuine issues of material fact as to these issues, i.e.: (1) whether plaintiff was, in fact, actively misled with regards to the terms, conditions and privileges associated with holding the position of "Manager of Business Operations;" (2) the terms and conditions under which Peterson was awarded the "Manager of Financial Planning and Analysis" position; (3) whether Lindsey Thomson actively and purposefully concealed Janet Adamo's record of excessive absenteeism from the interviewers for the "Manager I, Cost and Schedule Control" position; and (4) whether, with regards to each promotion, the decision-maker was aware of and took into account the fact that plaintiff had filed several EEOC charges. Therefore, the court finds that Lockheed is not entitled to summary judgment as to these claims.
III. CONCLUSION
Based on the foregoing analysis, the court concludes that Lockheed is entitled to summary judgment on plaintiff's claims for discrimination and retaliation to the extent that those claims are based on: (1) plaintiff's 1998 "de-layering" and subsequent assignment to the IRIS/SAP project; (2) the selection of Jeffery Auletto for the position of Director of Business Operations; (3) plaintiff's June 12, 2000 performance review; (4) plaintiff's August 1, 2001 performance review; and (5) Lockheed's refusal to award plaintiff a ten-percent retroactive pay increase in March 2002.
On the other hand, with regards to plaintiff's claims of discrimination and/or retaliation based on Lockheed's failure to award her the positions of: (1) "Manager I, Cost and Schedule Control" in April 2000; (2) "Manager of Business Operations" in March 2001; and (3) "Manager of Financial Planning and Analysis" in August 2001, the court finds that there are genuine issues of material fact as to whether there exists a causal connection between plaintiff's filing charges with the EEOC and Lockheed's failure to award these positions to plaintiff and as to whether Lockheed's proffered reasons for failing to award these positions to plaintiff are pretextual. Therefore, as to these claims, the court concludes that summary judgment is inappropriate.
An appropriate order follows.
ORDER
AND NOW, this 11th day of July, 2003, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that defendant's motion for summary judgment (doc. no. 29) is GRANTED in part and DENIED in part.
The defendant is GRANTED summary judgment as to plaintiff's claims of discrimination and retaliation to the extent that those claims are based on: (1) plaintiff's 1998 "delayering" and subsequent assignment to the IRIS/SAP project; (2) the selection of Jeffery Auletto for the position of Director of Business Operations; (3) plaintiff's June 12, 2000 performance review; (4) plaintiff's August 1, 2001 performance review; and (5) Lockheed's refusal to award plaintiff a ten-percent retroactive pay increase in March 2002.
The defendant's motion for summary judgment is DENIED, however, to the extent that plaintiff's claims for discrimination and/or retaliation are base on Lockheed's failure to award her the positions of: (1) "Manager I, Cost and Schedule Control" in April 2000; (2) "Manager of Business Operations" in March 2001; and (3) "Manager of Financial Planning and Analysis" in August 2001.