Opinion
Civil Action No. 01-2096-CM
January 31, 2003.
MEMORANDUM AND ORDER
Pending before the court is defendant Farm Bureau Mutual Insurance Company, Inc.'s Motion for Summary Judgment (Doc. 107). As set forth below, defendant's motion is granted.
Plaintiff Susan "Sue" Brown, a former employee of defendant, claims defendant discriminated against her on the basis of sex by delaying a promotion to which she was entitled, by failing to pay her a mid-year raise, and by paying her a lower salary than that paid to a similarly situated male employee, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination ("KAAD"), Kan. Stat. Ann. § 44-1001 et seq. Plaintiff seeks compensatory and punitive damages pursuant to 42 U.S.C. § 1981a and Kan. Stat. Ann. § 44-1005(k). In the alternative, plaintiff seeks nominal damages. Plaintiff further seeks to recover attorneys' fees expended in this matter. Defendant requests the court to award attorneys' fees, costs, and other expenses as allowed by 29 U.S.C. § 2000e-5(k) and Federal Rule of Civil Procedure 54.
The court notes that plaintiff has abandoned her claims seeking relief for a hostile work environment and for loss of future wages. (Pretrial Order at 7).
• Defendant's Alleged Delay in Promoting Plaintiff from Claims Adjuster I to Claims Adjuster II
The following facts presented are either uncontroverted or are viewed in the light most favorable to plaintiff as the nonmoving party, in accordance with Fed.R.Civ.P. 56.
Plaintiff began her employment with defendant as a Claims Adjuster I at defendant's Garden City, Kansas office, on April 20, 1998. In late 1998 or early 1999, plaintiff inquired about a transfer to defendant's Shawnee, Kansas office. Plaintiff interviewed with Scott Campbell, a Regional Claims Manager for defendant, regarding the Shawnee opening. Plaintiff was accepted for transfer, and transferred to the Shawnee office as Claims Adjuster I on February 1, 1999. In August or September 1999, Mr. Campbell told plaintiff she would be promoted to Claims Adjuster II when she passed the next Adjuster in Claims (AIC) course. Plaintiff passed the course in September or early October 1999. Plaintiff expected that if she received a promotion, her salary would increase from $28,128 to $30,000. On October 26, 1999, Mr. Campbell recommended plaintiff for promotion. Plaintiff stated that, during the course of discovery in the pending case, she read documents stating that the average interval of time between an employee's passage of the required course for promotion and the employee's eventual promotion is seven months.
• Defendant's Failure to Pay Plaintiff a Mid-Year Raise
Plaintiff claims Mr. Campbell failed to pay her a mid-year raise in July or August 1999 because "only men" received such raises. Defendant claims plaintiff did not receive a mid-year raise because she had started in the Shawnee office only a few months prior to mid-year. Further, defendant claims that mid-year raises are not a guaranteed increase in compensation, but rather are sporadic and discretionary.
C. Alleged Failure to Exhaust Administrative Remedies
In addition, defendant contends that plaintiff failed to exhaust her administrative remedies as required by the KAAD, because plaintiff failed to bring a claim of discrimination related to plaintiff's failure to receive a mid-year raise until more than six months had passed since the date of the alleged discrimination. Plaintiff filed an administrative complaint alleging gender discrimination with the Kansas Human Rights Commission (KHRC) on March 16, 2000.
• Alleged Pay Discrepancy Between Plaintiff and Matt Marine
In addition, plaintiff alleges defendant discriminated against her by paying her less than it paid Matt Marine, a male employee who also held the position of Claims Adjuster I. Specifically, plaintiff claims Mr. Marine was less qualified than she, but that defendant nevertheless paid him a $30,000 salary when he began his employment at defendant's Kansas City office on March 13, 2000. Plaintiff states that, in contrast, she was paid $29,256 on January 7, 2000, the date upon which she voluntarily left her employment with defendant.
Defendant identifies two reasons for the apparent discrepancy. First, Mr. Marine negotiated a starting salary in the Kansas City office of $30,000. Mr. Marine stated he needed this amount to compensate for a significant pay cut he would incur by coming to defendant from his previous position, where he made $37,500. Second, defendant had a policy prohibiting raises for laterally transferring employees at the time of transfer, so that employees would not be encouraged to apply for transfers to bigger cities simply to make more money. Thus, plaintiff received a starting salary in the Kansas City office that matched her salary in the Garden City office.
• Alleged Gender Animus by Defendant
Plaintiff states that, when she interviewed with Mr. Campbell for the Shawnee office position, Mr. Campbell made a comment regarding whether plaintiff "could handle the different environment in the Kansas City area since she was a woman." (Def.'s Mem. at 12). Plaintiff never reported this comment to anyone in the company. Further, it is uncontroverted that this comment did not affect plaintiff's work performance. Plaintiff further states that Mr. Petrick told her on another occasion that she "could be a good adjuster even though she was a woman." (Pl.'s Resp. at 47). In addition, plaintiff stated that Mr. Campbell complained to plaintiff regarding another adjuster, Joanne Kemp, regarding her work and abilities. Further, plaintiff states Mr. Campbell spoke with her regarding a woman who was an independent insurance agent. Plaintiff states that Mr. Campbell told her that this woman had been sleeping with her boss. Plaintiff states she perceived that comment to be discriminatory because Mr. Campbell stated that the woman got her position in that manner. Plaintiff did not report this comment to anyone, and admits that it did not affect her ability to do her job. In addition, plaintiff states that Mr. Campbell circulated jokes that "were not sexual in nature, but that somehow differentiated between men and women." Later in her response to defendant's summary judgment motion, plaintiff attaches testimony of other female employees indicating that Mr. Campbell made derogatory comments about women on numerous occasions. Plaintiff also stated that she does not remember what any of those jokes were, and that she was not offended by hearing the jokes, nor did she perceive them to be discriminatory toward her. Plaintiff also states that during an August 1999 meeting discussing staffing issues, Mr. Campbell stated that "no one better get pregnant," or else he would kill himself or the pregnant women should kill themselves. Although plaintiff believes other employees thought this statement was a joke, plaintiff did not take it as a joke. Plaintiff stated she was reluctant to bring any of her complaints to the attention of management, because she perceived defendant to have an "old boy network."
• Plaintiff's Resignation
Plaintiff notified Mr. Campbell that she was resigning her position with Farm Bureau in order to accept a job that would pay a higher salary and greater opportunities for advancement. On January 6, 2000, Mr Campbell came to plaintiff's office and told her that she needed to leave and that she had problems with men. Defendant paid plaintiff through her final days of employment through January 7, 2000.
• Defendant's Internal Investigation
After Mr. Campbell asked Ms. Brown to leave the office on January 6, 2000, she spoke with Peggy Goe of defendant's Human Resources department, and also wrote a letter to Ms. Goe describing her complaints about Mr. Campbell. Ms. Goe commenced an internal investigation of plaintiff's allegations on January 12, 2000, and interviewed twelve employees in plaintiff's office, in addition to Mr. Campbell. After the investigation, defendant's management counseled Mr. Campbell and required him to attend additional training.
Ms. Brown filed an administrative complaint with the KHRC on March 16, 2000, alleging she had been discriminated against on the basis of her gender.
• Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
• Failure to Exhaust Administrative Remedies
Defendant argues plaintiff has failed to exhaust the necessary administrative prerequisites to filing a claim under the KAAD, with respect to plaintiff's claim that she failed to receive a mid-year raise in 1999. The KAAD provides that "[a]ny complaint filed pursuant to this act must be so filed within six months after the alleged act of discrimination, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it will be from the last act of discrimination." Kan. Stat. Ann. § 44-1005(i). Here, plaintiff filed her complaint of gender discrimination with the KHRC on March 16, 2000. The court finds that the date upon which plaintiff would have discovered whether she was going to receive a mid-year raise in 1999 is unclear from the record. Accordingly, the court cannot find that plaintiff failed to comply with the KAAD. However, as set forth below, the court determines plaintiff has failed to set forth a prima facie case of gender discrimination based upon the mid-year raise.
• Plaintiff's Claims of Gender Discrimination
Plaintiff claims that defendant unlawfully discriminated against her on the basis of her sex by (1) delaying her promotion to the Claims Adjuster II position; (2) failing to pay her a mid-year raise; and (3) paying her a lower salary than Mr. Marine. Initially, the court notes that it may apply Title VII's standards to plaintiff's KAAD claims. Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477, 1480 n. 2 (10th Cir. 1991).
A plaintiff alleging discrimination in violation of Title VII may prove that she was discriminated against "through either direct evidence of discrimination (e.g., oral or written statements on the part of a defendant showing a discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination." Kendrick v. Penske Transp. Servs. Inc., 220 F.3d 1220, 1225 (10th Cir. 2000) (citing Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999); Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995)). Direct evidence is "[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Black's Law Dictionary 577 (7th ed. 1999). Statements of personal opinion, even when reflecting a personal bias or prejudice, do not constitute direct evidence of discrimination. Shorter, 188 F.3d at 1207. Rather, "[t]he plaintiff must show that the employer actually relied on her gender in making its decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989).
Here, plaintiff has not identified any direct evidence indicating the allegedly discriminatory actions taken by defendant were linked to plaintiff's gender. Instead, plaintiff alleges that several incidents occurred during the course of her employment which demonstrate a discriminatory animus against her on the part of her employer. Accordingly, the court analyzes plaintiff's claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under McDonnell Douglas, to survive summary judgment, plaintiff must raise a genuine issue of material fact on each element of her prima facie case of discrimination. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). If plaintiff succeeds, the burden shifts to defendant to articulate legitimate, nondiscriminatory reasons for the challenged employment action. Randle, 69 F.3d at 451. If defendant makes such a showing, the burden reverts to plaintiff to set forth facts that raise a genuine issue of material fact that defendant's proffered reasons are pretextual and thus unworthy of belief. Id. If plaintiff can proffer such evidence, the motion for summary judgment should be denied. Id. The court now applies this framework to each of plaintiff's claims.
• Delay in Promotion
Plaintiff claims defendant discriminated against her on the basis of her gender by unreasonably delaying her promotion to Claims Adjuster II. To establish a prima facie case of gender discrimination under Title VII, plaintiff must present evidence to show that she (1) belonged to the protected class; (2) suffered an adverse employment action; and (3) that similarly situated employees were treated differently. Trujillo v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998).
Here, the court finds plaintiff cannot satisfy the second and third elements required in order to present a prima facie case. For ease of analysis, the court discusses the third element first. It is uncontroverted that on October 26, 1999, Mr. Campbell recommended plaintiff for promotion to Claims Adjuster II. However, plaintiff has not put forth any evidence indicating she was treated differently from any other employee — male or female — due to the interval of time between Mr. Campbell's recommendation that she be promoted and the date upon which the promotion became effective.
Furthermore, plaintiff has not shown that the delay constituted an adverse employment action. An "adverse employment action" is one that "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Although the Tenth Circuit liberally defines the phrase "adverse employment action," it will not consider "a mere inconvenience or alteration of job responsibilities" to be an adverse employment action. Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998). Here, plaintiff has not shown that the delay in promotion was unreasonable in comparison to defendant's usual policy regarding promotions. Moreover, plaintiff has not shown that the delay adversely affected her. Accordingly, the evidence presented does not show that plaintiff was adversely affected due to the delay.
Furthermore, even if plaintiff had adduced such evidence, the court finds defendant has set forth a legitimate, nondiscriminatory reason for the alleged delay in promotion. Specifically, there is evidence in the record indicating that seven months was the average length of time that was required after an employee's promotion was recommended until the promotion became effective. According to defendant, because plaintiff left defendant's employ prior to seven months after her promotion, plaintiff did not experience the pay increase as a consequence of her promotion because it did not become effective. Further, plaintiff has failed to show that this reason proffered by defendant is unworthy of credence. Accordingly, the court grants defendant's motion for summary judgment as to plaintiff's claim that defendant delayed her promotion on the basis of her sex.
• Failure to Pay Mid-Year Raise
Next, plaintiff asserts defendant failed to pay her a mid-year raise to which she was entitled because of her gender. Using the standard for a prima facie case as set out above, the court finds plaintiff has failed to demonstrate the second and third elements. Specifically, the court cannot determine that plaintiff experienced an adverse employment action. Plaintiff presents no evidence indicating she was entitled to the mid-year raise; as such, the court cannot find that plaintiff experienced an adverse employment action because there is no indication that she failed to receive a benefit to which she was entitled. Moreover, plaintiff presents no evidence that she failed to receive a mid-year raise bonus when other similarly situated employees received one. Although "a plaintiff may also show pretext on a theory of disparate treatment by providing evidence that he was treated differently from other similarly-situated, nonprotected employees . . . [d]ifferences in treatment that are trivial or accidental or explained by a nondiscriminatory motive will not sustain a claim of pretext." Kendrick, 220 F.3d at 1232. It is plaintiff's burden to demonstrate that she is similarly situated to the employees to which she compares herself. Sorensen v. City of Aurora, 984 F.2d 349, 353 (10th Cir. 1993). Here, plaintiff discusses several employees who were or were not paid mid-year raises. However, the evidence plaintiff has set forth does not indicate whether or how the employees were similarly situated to plaintiff. There is no indication that the comparators' job performance was similar to plaintiff's. Based upon the evidence in the record, the court cannot find that plaintiff has presented a prima facie case of sex discrimination based upon defendant's failure to pay her a mid-year raise.
• Alleged Salary Disparity Between Plaintiff and Mr. Marine
Finally, plaintiff alleges defendant discriminated against her on the basis of her sex by paying her a salary lower than that earned by Mr. Marine. The court finds that plaintiff has failed to set forth evidence indicating she was similarly situated to Mr. Marine. Consequently, plaintiff cannot satisfy the third element of a prima facie case. Plaintiff and Mr. Marine accepted their positions with defendant's Kansas City office under different circumstances, and were never employed contemporaneously by defendant. Plaintiff was transferred from the Garden City, Kansas office. It is uncontroverted that defendant prohibits giving laterally transferring employees a raise at the time of their transfer. Accordingly, defendant was unable to raise plaintiff's salary from the $28,128 she was earning at the time of her transfer. Mr. Marine, in contrast, began his employment with defendant at its Kansas City office, and negotiated a starting salary of $30,000 to compensate for the fact that he was leaving a higher paying job. Based upon these significant differences in the circumstances under which defendant and Mr. Marine received a salary from the Kansas City office, the court cannot conclude that they were similarly situated. If plaintiff had presented evidence indicating that a laterally transferring male employee had been allowed a raise while she had not, or that a male employee had been permitted to negotiate a higher starting salary than she had under similar circumstances, the court would be in a better position to determine that plaintiff had set forth a prima facie case. Given the evidence in the record, however, the court concludes plaintiff has failed to meet her burden to set forth a prima facie case of sex discrimination based upon the salary discrepancy between herself and Mr. Marine.
V. Order
IT IS THEREFORE ORDERED that defendant Farm Bureau Mutual Insurance Company, Inc.'s Motion for Summary Judgment (Doc. 107) is granted.