Opinion
CIVIL ACTION No. 99-2241-CM.
December 28, 2000
MEMORANDUM AND ORDER
This matter is presently before the court on the defendant's, General Motors Corporation, motion for summary judgment (Doc. 28) and the plaintiff's, Pamela Goodwin, motion to supplement (Doc. 39) her response to defendant's summary judgment motion. In the interests of justice, the court grants the plaintiff's motion to supplement and considers the supplemental memorandum in deciding the defendant's motion for summary judgment. For the reasons set out herein the defendant's motion for summary judgment is granted.
• Motion to Supplement
The summary judgment motion at issue here has a tortuous history. Defendant filed the motion on June 30, 2000 and plaintiff did not respond within the time allowed by local rule. After asking the court to grant the summary judgment motion as unopposed, the defendant discovered that it had served the motion on plaintiff's attorney by first class mail to an incorrect address. The court held a telephone conference on September 6 and granted the plaintiff until October 10 to respond to the motion. Plaintiff filed her response at 11:44 p.m. on October 10. On October 20, before the defendant replied to plaintiff's response, plaintiff filed a motion to supplement along with a Supplemental Memorandum in Opposition to Defendant General Motors Corporation Motion for Summary Judgment. On October 23, defendant filed a reply memorandum in support of its summary judgment motion, but has responded neither to plaintiff's motion to supplement nor to plaintiff's supplemental memorandum.
In a footnote to its reply memorandum, the defendant states its opposition to plaintiff's motion to supplement and requests ten days to respond to the plaintiff's supplemental memorandum if the court allows the supplementation. (Def.'s Reply Mem., n. 1). Making a request in a footnote in a brief is insufficient to seek affirmative action by the court. Dewey v. Topeka, No. 97-4037-SAC, 2000 WL 1542885, at *2 (D.Kan. Sep. 19, 2000) (citing Fed.R.Civ.P. 7 and D. Kan. Rule 7).
The court has discretion to permit supplemental briefing and, although it generally disfavors supplementation, it will occasionally consider it. Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 659 (D.Kan. 1999); compare Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 457 (D.Kan. 1999) (request for sanctions inappropriate in supplement to a motion filed months earlier). The court may grant an uncontested motion without further notice. D. Kan. Rule 7.4.
Plaintiff's memorandum, filed on October 10, did not include exhibits which were cited in the memorandum. Plaintiff's statement of uncontroverted facts in the October 10 memorandum did not cite with particularity to the record as required by D. Kan. Rule 56.1. Plaintiff's supplemental memorandum corrects those deficiencies. Plaintiff argues that the supplemental memorandum "does not materially alter Plaintiff's initial response to the summary judgment." (Pl.'s Mot. to Supplement at 1). Although the supplemental memorandum does not set out any new legal theories, the court notes that it provides twelve additional numbered paragraphs of allegedly uncontroverted facts and approximately four pages of additional argument. In the interests of justice, however, the court finds that it would unfairly prejudice the plaintiff if the court were to deny her request to supplement her response. Where the plaintiff has corrected procedural deficiencies before the defendant replied to the memorandum, the court should not use the rules of procedure to prevent a decision on the merits of the motion, since the defendant has not been prejudiced thereby. Therefore, the plaintiff's motion to supplement is granted and the court will consider the plaintiff's supplemental response in opposition to defendant's motion for summary judgment.
• Summary Judgment Standards
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 also 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).
• Facts
The facts are largely uncontroverted. Plaintiff does not specifically controvert any of the defendant's facts, but restates them in her own words and adds additional facts in her supplemental memorandum. The court views the facts, as it must, in the light most favorable to the plaintiff. The plaintiff, an African-American woman, began working for General Motors Corp. (GM) at its Leeds plant in Kansas City, Missouri (Leeds) in 1976. In 1978 the plaintiff was promoted to supervisor of janitors, a salaried sixth-level position. Plaintiff was laid off in June 1980, and recalled in August 1980 as a fourth-level clerk with an 11% reduction from her previous pay.
In September 1982 plaintiff was laid off again. Plaintiff was recalled in March 1983 as a fourth-level clerk. While in this position, plaintiff performed duties of a company car coordinator. Company car coordinator is a sixth-level position at other GM plants, but plaintiff was employed and payed as a fourth-level clerk while performing those duties. While performing those duties, plaintiff was denied a promotion. GM told the plaintiff that her promotion was denied because no employees at Leeds were being promoted since the Leeds plant was being closed. In August 1987 the Leeds plant closed and plaintiff was once again laid off.
In October 1987, plaintiff transferred to a temporary position as a plant security officer at the GM Fairfax plant at Kansas City, Kansas (Fairfax). While plaintiff was working as a plant security officer, GM offered her a permanent fifth-level position as a labor relations clerk at the Fairfax plant. Plaintiff accepted the position, but she was placed as a temporary fourth-level clerk with pay lower than she had been receiving as a fourth-level clerk at Leeds. GM explained the pay reduction by telling plaintiff that Fairfax did not pay fourth-level employees as much as Leeds. In June 1988, after plaintiff had decided to take a permanent position with GM at Flint, Michigan, plaintiff's fourth-level position was made a permanent position, and plaintiff stayed at Fairfax. Approximately a year later, plaintiff was promoted to a fifth-level labor relations clerk.
In December 1991 plaintiff was promoted to a sixth-level labor relations representative position and, within a month, given a raise to $3,360 per month. At the time plaintiff was promoted to labor relations representative, other labor relations representatives at Fairfax received the following monthly salaries: S.B., $3,721; R.W., $3,893; C.H. $3,681. GM eliminated the second shift at Fairfax in April 1992 and plaintiff was placed in a fifth-level clerk position, without any loss in pay. At the same time, C.H. was placed in a fifth-level position from a sixth level position, also without any loss in pay. In December 1993, plaintiff and C.H. were both recalled to sixth-level positions as labor relations representatives. Plaintiff and the three co-workers she asserts are similarly situated received pay raises after May 1994 as follows:
Plaintiff's memorandum compares pay received in December 1988. (Pl.'s Supp. Mem., at 5, ¶ 22). However, in December 1988 plaintiff was a fourth-level clerk-not a labor relations representative. The court has used figures from December 1991-when plaintiff was promoted to labor relations representative. (Pl.'s Supp. Mem., Ex. A, B, C, D). In December 1991, C.H. was not a labor relations representative, but was in a sixth-level position, had been a labor relations representative between April 1985 and April 1988, and was recalled as a labor relations representative in December 1993 along with the plaintiff. (Pl.'s Supp. Mem., Ex. A, D).
Individual 1994 Raise 1995 Raise 1996 Raise 1997 Raise 1998 Raise
Plaintiff 3 2 2 3 1
S.B. 1 3 4 2 2
R.W. 4 4 3 1 3
C.H. 2 1 1 1 1
On at least two occasions between 1992 and 1997, plaintiff complained to defendant about her compensation. At one point, plaintiff complained to the general supervisor of the labor relations department that her compensation was not commensurate with the "market range" for her position and asked if the amount of her raises could be increased. The supervisor explained that "the pie is only so big," and GM could not increase her raises at that time. In approximately April 1996, plaintiff approached the plant personnel director regarding her compensation. Plaintiff had heard that a white clerk at the plant was receiving a salary higher than hers. The personnel director told the plaintiff that her compensation was, in fact, higher than the white clerk's. Plaintiff also expressed concern to the personnel director that her salary was below "market range." The personnel director explained that "the market is going in a different direction" and "the objective is to keep pay scales below market range."
GM employees are prohibited from discussing compensation levels with other employees, but in March 1998 plaintiff discovered a December 1997 salary report which contained a list of the 1997 salaries of all employees in the personnel department, including the plaintiff and the three co-workers plaintiff alleges are similarly situated. From that report plaintiff determined that she was the lowest paid labor relations representative at Fairfax. Plaintiff discussed the report and her level of compensation with the plant's salaried personnel administrator, the plant personnel director, the general supervisor of the labor relations department, and her direct supervisor.
In June 1998, GM tendered plaintiff a five percent raise, to $4286, when it made annual raises, but the plaintiff refused to sign a confidentiality/compensation statement. As a result, plaintiff was not given the raise. Since then, plaintiff has refused to sign any confidentiality/compensation statement and has received no raises. Shortly after the regular June 1998 raise, the Fairfax plant manager and plant personnel director offered the plaintiff an additional raise to $4,600 per month. In August 1998 plaintiff refused the raise because it did not address past disparities in her compensation and would still result in her being paid $259 less per month than the lowest paid of her co-workers. In June 1999 GM tendered a raise to $4,900 per month, and once again plaintiff refused to sign the confidentiality/compensation statement.
Plaintiff's direct supervisor testified that the plaintiff is a very capable person who does her job well and performs equivalently to her co-workers. (Pl.'s Supp. Mem., Limon Depos., p12, l.10 — p. 13, l.1; p. 22, l.5 — p. 23, l.10). The plaintiff believes that the disparity between her compensation and that of her co-workers is the fault of the former salaried personnel administrator, the former plant personnel director, and the former general supervisor of the labor relations department. However, plaintiff does not recall any specific discriminatory acts or statements by any of the three individuals. (Pl.'s Supp. Mem., at 12, ¶ 48).
• Statute of Limitations
• Limitations Period
Plaintiff complains pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, that the defendant discriminated against her by (1) paying her less than similarly situated white co-workers and (2) forcing her to accept pay decreases when she was recalled from lay-off in 1980 at Leeds and again, after the Leeds plant closed, when she was re-hired at Fairfax in 1987 or 1988. The court concludes that the plaintiff may also assert (3) claims of discriminatory annual raises after 1993.
Plaintiff initially asserted claims pursuant to 42 U.S.C. § 1981 in addition to her Title VII claims. In her papers, the plaintiff has addressed only her Title VII claims and, accordingly, the court deems plaintiff's § 1981 claims abandoned and grants defendant's motion for summary judgment with respect to the § 1981 claims. Wesley v. Don Stein Buick, Inc., 42 F. Supp.2d 1192, 1995, n. 2 (D.Kan. 1999) (claims deemed abandoned where pro se plaintiff failed to address claims in papers responding to summary judgment motion).
Although the plaintiff specifically asserts a claim only for discriminatory salary level, she claims that GM was "paying her less than" other workers (First Am. Compl., at 4, 6) and "denying her raises which would put her in line with corporate policy." (Pretrial Order, at 3). Courts have recognized a claim for discriminatory raises where a claim for discriminatory salary is not cognizable. Amro v. Boeing Co., 65 F. Supp.2d 1170, 1185-86 (D.Kan. 1999). The defendant has argued that the raises given plaintiff support its position. (Mem. for Summ. J. at 17-18; Reply Mem. at 3). The defendant has acknowledged the issue and will not be surprised or prejudiced if the court recognizes a discriminatory raise claim. Therefore, the court concludes that the plaintiff may assert such a claim.
Because Kansas is a deferral state, an employee asserting a Title VII claim must file a charge with the EEOC within 300 days after the allegedly discriminatory act occurred. 42 U.S.C. § 2000e; Mascheroni v. Board of Regents, 28 F.3d 1554, 1557 n. 3 (10th Cir. 1994); Tilmon v. Dillard's Dep't Stores, 58 F. Supp.2d 1276, 1281 (D.Kan. 1999). An administrative complaint is a prerequisite to suit pursuant to Title VII. Delmar v. Raytheon Aircraft Corp., No. 96-1002-JTM, 1996 WL 499144, at *4 (D.Kan. Aug. 9, 1996). Plaintiff filed a charge of discrimination with the EEOC on September 22, 1998. Therefore, any acts occurring before November 26, 1997 are outside the Title VII limitations period and may not be considered by this court unless some reason appears to toll the limitations period.
• Continuing Violation Doctrine
Acts occurring before the Title VII statutory period may be considered by the court if they are sufficiently related to at least one allegedly discriminatory act occurring within the period and if all the acts constitute a continuing pattern of discrimination. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir. 1999). The Tenth Circuit has described the relationship:
The continuing violation doctrine allows a Title VII plaintiff to challenge conduct that occurred outside the statutory time period if such conduct was "sufficiently related and thereby constitute[d] a continuing pattern of discrimination." "Mere continuity of employment, without more, is insufficient. . . ." Although the act occurring within the statutory period need not violate Title VII when viewed alone, the plaintiff cannot merely allege the continuing effects of prior acts; rather, she must show that events inside and outside the statutory period share commonality and are related acts of discrimination. In determining whether a plaintiff has made such a showing, we consider: "(i) subject matter — whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence — whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate."
Robbins v. Jefferson County Sch. Dist., 186 F.3d 1253, 1257-58 (10th Cir. 1999) (citations omitted) (emphasis added).
The premise of the continuing violation doctrine is the equitable notion that a statute of limitations should not begin to run until a reasonable person would, or should, be aware that her rights were violated. Therefore, a continuing violation is not likely to be found where a plaintiff knew, or should have known through the exercise of reasonable diligence, that she was being discriminated against. Bullington, 186 F.3d at 1311; Holmes v. Regents of the Univ. of Colo., No. 98-1172, 1999 WL 285826, at *4 (10th Cir. May 7, 1999).
There are five circumstances upon which the plaintiff bases her claims of race discrimination. (1) Pay reductions-upon recall from lay-off in August 1980 and upon hiring at Fairfax in 1987 or 1988; (2) "undercompensation" and failure to promote upon recall from lay-off in March 1983 at Leeds; (3) grade level upon hiring at Fairfax in 1987 or 1988; (4) aggregate pay level below other labor relations representatives upon promotion as a labor relations representative in 1991 or 1992 and continuing for all periods relevant to this suit; and (5) pay raises given or tendered from 1994 through 1998. The court will first analyze plaintiff's claim of a continuing violation based upon the circumstances that did not continue in identical form after November 1997.
• Discriminatory Acts Not Continuing After November 1997
The court finds no continuing violation based upon the totality of the circumstances. The "acts" which continued into the limitations period are (a) aggregate pay below the level of other labor relations representatives after November 1997, and (b) the raise tendered in June 1998. The fact that all of the alleged discriminatory acts occurring within and outside the limitations period concern compensation is not sufficient to constitute the same subject matter. The pay reductions in 1980 and 1987 or 1988 are not the same subject matter as the acts occurring within the limitations period. The acts occurring in the limitations period do not involve circumstances in which the work force was reduced or the plant was closed, they deal with decisions on apportioning raises to employees, not with deciding which employees to return from a reduction in force or to hire from a nearby closed plant.
Furthermore, the pay reductions are not acts which occurred frequently beginning in 1980 and continuing into the limitations period. Two pay reductions occurring seven years apart (and where the last one occurred ten years before any charge was filed) are too distant in time to be viewed as frequent occurrences. Finally, the pay reductions were "permanent" for Title VII purposes when they occurred. The consequences of the pay reductions would continue even if the defendant had no continuing intent to discriminate. Further, a reasonable person would know that the time to act was immediately after her pay was reduced. The pay reductions at issue are not part of a course of conduct which continued into the limitations period.
The "undercompensation" and failure to promote at Leeds after March 1983 cannot be considered part of a continuing course of conduct to pay the plaintiff less than similarly situated co-workers. The subject matter of the discriminatory pay at Leeds was to pay the plaintiff at a rate for a position lower than the duties she actually performed (a fourth level employee performing job duties normally performed by a sixth-level company car coordinator). Plaintiff does not allege that she was paid less than other fourth-level co-workers at Leeds. At Fairfax, the plaintiff is paid less than co-workers of the same grade and job title working in the same office.
Although plaintiff alleges that her underpayment has continued to the present, the underpayment cannot be considered frequent because there is no evidence that GM has made frequent, conscious, intentional decision to underpay the plaintiff. At most, plaintiff can argue that a decision to under pay the plaintiff was made annually when GM considered raises.
Plaintiff does not present any facts to indicate that GM considered her salary in relation to the salary of her co-workers in order to determine her raise. The facts indicate that aggregate salary is used to determine how the employee's compensation compares to the market range for that position (Pl.'s Supp. Mem. at 5-6, 10, ¶¶ 26, 41, 42) and as a base salary upon which to apply a percentage raise. Most importantly, any decisions made by the Leeds plant were permanent when the plant closed and the plaintiff was laid off. At that point, the discrimination was complete. A reasonable person would know that any discrimination which occurred at Leeds was complete.
Plaintiff states that a GM supervisor compares level of compensation between employees in deciding annual raises. (Pl.'s Supp. Mem., Statement of Uncontroverted Facts, at 7, ¶ 30). The testimony to which the plaintiff cites for that fact, in context, indicates only that a supervisor might compare compensation levels, and would have discretion to do so. The testimony does not indicate that a supervisor does or is expected to compare compensation levels in deciding raises. (Pl.'s Supp. Mem., Marr Depos., p. 73, l. 25 — p. 75, l. 6). Plaintiff cites to no evidence that any supervisor actually compared her compensation to that of her co-workers in deciding what raise to give her.
The decision by GM to hire plaintiff as a fourth-level rather than a fifth-level employee and reduce her pay upon hiring at the Fairfax plant is not part of a continuing course of discriminatory conduct to suppress plaintiff's pay. The subject matter of that decision was whether to hire an employee who had previously been a GM employee at another facility, what position or positions were available for which she was qualified, and at what level should she be hired. The decision was a one-time decision made at the latest in June 1988 when plaintiff's position was changed from temporary to permanent. Plaintiff does not allege that GM has frequently decided to offer positions to plaintiff and reduce the level of the position after she has accepted. Once the decision was made, it was permanent. The effects of the decision would continue for all the time plaintiff was employed at Fairfax even if there were no continuing intent to discriminate by any of the company decision-makers. At the point at which the position level was reduced and pay was decreased, a reasonable person would have known that it was necessary to assert her rights.
The court finds no basis to apply the continuing violation doctrine to consider the earlier acts of discrimination. The court will next consider the continuing violation doctrine in light of circumstances which existed before November 1997 and continued into the limitations period.
• Identical" Discriminatory Acts Occurring Before and After November 1997
Plaintiff argues that GM discriminated against her on account of her race when it gave her a salary below that of her co-workers in January 1992 after it had promoted her as a sixth-level labor relations representative. Plaintiff argues there is a continuing violation because, after November 1997, GM once again discriminated against her on account of her race by making the decision to continue to pay her at a salary below that of her co-workers. Alternatively, the plaintiff claims that she has been given discriminatory raises each year beginning in 1994, that the raise tendered and refused in June 1998 was a discriminatory raise, and that, therefore, GM has engaged in a continuing pattern of discriminatory conduct justifying the court in considering the prior acts of discrimination.
The court assumes for summary judgment purposes that GM's salary decision in January 1992 was unlawful discrimination. Nevertheless, the mere fact that plaintiff's salary remains below that of her co-workers does not constitute a continuing violation. As discussed above, plaintiff provides no evidence that GM ever compared the aggregate level of her salary to that of her co-workers. This case illustrates the wisdom of considering the "permanence" factor before the court may apply the continuing violation doctrine. Based upon the facts presented and assumed by the court, the consequences of GM's discriminatory decision to start plaintiff at a lower salary will continue throughout her career at GM even if no further discrimination or intent to discriminate continues.
Plaintiff knew of her salary in January 1992 immediately after she received the promotion. Although plaintiff's suspicion that race was a factor in setting her salary was not aroused until later, the discrimination was complete. GM is not required to notify plaintiff that it discriminated against her before the statute begins to run. Tilmon, 58 F. Supp.2d at 1283 ("[a] declaration of discrimination need not be issued before the statute of limitations begins to run.") (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 558 (10th Cir. 1994)). Notice of the adverse employment action is all that is required. Plaintiff argues that GM's policy prohibiting employees from discussing salary prohibited her from knowing that discrimination had occurred. That argument may provide the basis for equitable tolling of the statute of limitations and will be considered later in this opinion.
Plaintiff has shown no actual, frequent, decisions to pay her less than her co-workers. Furthermore, the adverse employment action was permanent in January 1992. A salary below plaintiff's co-workers is no basis to justify application of the continuing violation doctrine. Plaintiff appears to argue that a difference in salary levels during the limitations period is actionable as race discrimination under Title VII so long as the defendant did not take action to correct the disparity, even though the decision to provide plaintiff a lower salary was made outside the limitations period.
Plaintiff's argument is precluded by Tenth Circuit law on continuing violation. The continuing effects of prior acts of discrimination are not actionable. Robbins, 186 F.3d at 1257-58; Holmes, 1999 WL 285826, at *4. As discussed above, the discriminatory decision to pay plaintiff a salary lower than her co-workers was permanent and complete in January 1992. A court in this district has previously considered and rejected the argument that a claim for discriminatory aggregate salary disparity may be brought at any time. Amro v. Boeing Co., 65 F. Supp.2d 1170, 1184-85 (D.Kan. 1999) (citing Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d 1138 (7th Cir. 1997)). In Dasgupta, the court concluded that aggregate salary based upon decisions made outside the limitations period was not actionable because it was merely the lingering effect of previous unlawful acts. Dasgupta, 121 F.3d at 1140. The court in Amro agreed, but determined that annual raises are actionable under Title VII. Amro, 65 F. Supp.2d at 1185-86. Accordingly, the court concludes that the disparity between plaintiff's aggregate salary and that of her co-workers is merely the lingering effect of prior discrimination.
Finally, plaintiff's claim that the annual pay raises constitute a continuing course of discriminatory conduct will not justify application of the continuing violation doctrine. Each pay raise constitutes the same subject matter. However, plaintiff does not present evidence to show that her aggregate salary level was ever compared to that of her co-workers in determining her raises.
In the circumstances of this case, frequency is not determinative of a continuing violation. The potentially discriminatory raises occurred at regular intervals in June of each year, and might in the proper circumstances support an inference of a continuing violation. Compare Roberts v. Gadsden Mem'l Hosp., 835 F.2d 793, 801 (11th Cir. 1988) (two identical incidents, although three years apart, may constitute a continuing violation).
Each year GM gave the plaintiff a raise about which the plaintiff knew all of the facts immediately. If the raise was an adverse employment action which constituted discrimination because of the plaintiff's race, the discrimination was complete and the plaintiff was on notice of the need to assert her rights. As discussed above, the defendant is not required to notify the plaintiff that discrimination has occurred before the limitations period may run. Viewing each raise individually, the consequences of the discriminatory act would continue even in the absence of a continuing intent to discriminate. Robbins, 186 F.3d at 1258. Plaintiff may not wait beyond the limitations period to see if the defendant will discriminate again and invoke the continuing violation doctrine to seek redress for violations which occurred outside the limitations period.
The court finds that the continuing violation doctrine is not applicable in the circumstances of this case. However, plaintiff argues in the alternative that her "cause of action did not accrue until 1998 when she discovered that she was discriminated against due to pay." (Pl.'s Supp. Mem., at 21).
• Equitable Tolling
Plaintiff argues that the limitations period should be equitably tolled because GM's compensation confidentiality agreements prevented her from discovering the adverse employment action. Plaintiff reasons that she was unaware that her compensation was below that of her co-workers, that she was without notice of any adverse employment action until she discovered the salary report in March 1998 and that, therefore, the limitations period should be equitably tolled.
The Tenth Circuit has determined that a Title VII "time limit will be tolled only upon a showing of active deception where, for example, the plaintiff has been actively misled or lulled into inaction by her past employer, state or federal agencies, or the courts." Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029, 1031 (10th Cir. 1994) (citations and internal quotation marks omitted); compare Gray v. Phillips Petroleum Co., 858 F.2d 610, 616 (10th Cir. 1988) (tolling permitted only if plaintiff is actively misled or prevented from asserting her rights in some extraordinary way). To justify equitable tolling, the plaintiff must show that her failure to timely file was the result of "either a deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing [her] charge." Hulsey, 43 F.3d at 557 (internal quotation marks omitted).
The circumstances of this case do not rise to the level of active deception required for equitable tolling. Plaintiff presents no evidence that GM's policy was part of a deliberate design to hide discrimination until after the limitations period. Many companies have a policy that employees may not discuss compensation and that the company will not reveal salaries. Those policies minimize conflict and promote harmony in the workplace. Plaintiff fails to present evidence that GM should have understood its policy would cause plaintiff to delay filing her EEOC charge.
Furthermore, plaintiff's statement of facts indicates that she suspected her salary was below market range for her position and was even below that of a white clerk as early as April 1996. (Pl.'s Supp. Mem., at 10, ¶¶ 41, 42). As the court previously noted, the defendant is not required to notify the plaintiff that it has discriminated against her before the limitations period will run. Even assuming the defendant's explanations for the plaintiff's salary and the policy on discussions about compensation were intended to mislead the plaintiff into inaction, the plaintiff suspected race discrimination was the reason for her low salary and knew that GM denied any problem in 1996, at least two years before she filed a charge with the EEOC. See Purrington v. Univ. of Utah, 996 F.2d 1025, 1030-31 (10th Cir. 1993) (equitable tolling is not applicable where plaintiff knowingly failed to act with due diligence and knew employer had not adequately addressed the issue).
Finding no continuing violation and no equitable tolling of the limitations period, this court has no basis to consider any allegations of discriminatory conduct occurring before November 26, 1997. The plaintiff, however, claims that the raise tendered in June 1998 was based upon race discrimination. Because the raise was tendered within the limitations period, the court must consider whether summary judgment for the defendant is proper on that claim.
• Race Discrimination in 1998 Pay Raise
• Legal Standard Controlling Race Discrimination Claims
Title VII prohibits an employer from discriminating against an employee because of the employee's race. 42 U.S.C. § 2000e-2(b). In order to prevail on a race discrimination claim, the plaintiff must show that the defendant had a discriminatory intent or motive in its decisions concerning the plaintiff. EEOC v. Flasher Co., 986 F.2d 1312, 1317 (10th Cir. 1992); Wright v. Wyandotte County Sheriff's Dep't, 963 F. Supp. 1029, 1035 (D.Kan. 1997). Plaintiff need not show that race was the sole motivation for the defendant's decisions, but only needs to establish that race was a factor which made a difference in the decision. Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir. 1995). Since plaintiff presents no direct evidence of discrimination, the court must analyze the plaintiff's claims under the burden-shifting framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Elmore, 58 F.3d at 529; Flasher, 986 F.2d at 1317; Wright, 963 F. Supp. at 1036.
Under the three-step McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. Elmore, 58 F.3d at 529. If plaintiff is able to establish a prima facie case of discrimination, the defendant in step two must articulate a legitimate, nondiscriminatory reason for its decisions. Id. at 530. Once the defendant produces evidence of a legitimate, nondiscriminatory reason, then in step three the plaintiff is left to prove that the defendant's decision was the result of intentional discrimination. Id. The plaintiff's burden in step three may be met by showing that the defendant's articulated nondiscriminatory reason is a pretext or cover-up for the real, discriminatory reason, or by direct or circumstantial evidence that the defendant had a discriminatory motive or intent in reaching its decisions. Id.
To establish a prima facie case of race discrimination, plaintiff must show that: (1) she is a member of a racial minority; (2) her job performance was satisfactory; (3) she was adversely affected by defendant's employment decisions; and (4) similarly situated non-minority employees were treated differently.
Wright, 963 F. Supp. at 1036 (citing Martin v. Nannie the Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir. 1993) and McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir. 1988)).
Plaintiff asserts that "[t]o make out a prima facie case for racially motivated disparate pay . . . a minority plaintiff need merely to show that she occupies a job 'similar' to that of higher paid non-minorities." (Pl.'s Supp. Mem. at 16). The court already decided that the plaintiff's claim for racially motivated disparate pay is untimely. Therefore, the court need not decide whether plaintiff's assertion is correct.
• Analysis
• Similarly Situated Employees
For purposes of summary judgment, the defendant has conceded that the plaintiff has satisfied the first three elements of a prima facie case, but denies that plaintiff can show that she is similarly situated to the three co-workers she cites as comparable. The court must determine whether the plaintiff has established that similarly situated employees were treated differently with regard to the June 1998 raise tendered by defendant. Employees are similarly situated if they deal with the same supervisor and are subject to the same performance evaluation and discipline standards. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). The court, in deciding whether employees are similarly situated, should consider relevant employment circumstances such as company policies applicable to the employees and whether their work history is comparable. Id.
The court notes that the defendant's concession was directed toward claims of disparity in salary level and reduction in pay in 1980 and 1987 or 1988. The concession was not directed toward a claim of discriminatory raises.
Defendant argues that the plaintiff is not similarly situated to her co-workers because none of the co-workers has ever worked at Leeds, all of them have been in sixth-level positions longer than plaintiff, and none of them has ever been laid-off and forced to look for a position when a plant closed. If the plaintiff were able to assert her claim of discriminatory salary level, such considerations would certainly be relevant. However, the only claim properly before the court is plaintiff's claim of discriminatory pay raise in June 1998. Therefore, such considerations are not relevant. None of those considerations relate to criteria used by GM in determining raises-performance, critical skills, and position to mid-point. (Pl.'s Supp. Mem., at 5-6, ¶ 26).
Plaintiff and her co-workers all worked for the same supervisor in 1997 and 1998 and they were subject to the same standards for performance evaluation and the same company policies. There is evidence that the plaintiff and her co-workers performed their duties approximately equivalently. Therefore, the court finds that the co-workers chosen by the plaintiff as comparables were similarly situated to plaintiff for purposes of the 1998 raise at issue. However, that does not end the inquiry. The plaintiff must show that the similarly situated employees were treated differently than she in some discriminatory fashion.Plaintiff has not met her burden under Title VII to show that, in the June 1998 pay raise, she was treated differently because of her race. In 1998, R.W. and S.B. each received a smaller percentage raise than plaintiff, and C.H. received exactly the same percentage raise as the plaintiff. No similarly situated non-minority employee was treated better than the plaintiff. Although S.B. and C.H. received a greater raise in terms of dollars per month ($210 and $230, respectively, versus $204 for the plaintiff), that is merely a continuing effect of the fact that the plaintiff's aggregate salary was less than her co-workers before the raise was given. The court finds as a matter of law that the plaintiff cannot establish a prima facie case of disparate treatment based upon the June 1998 pay raise tendered by the defendant and refused by the plaintiff.
The court finds that the plaintiff's Title VII claims based upon actions or decisions before November 26, 1997 are barred by the statute of limitations and may not be considered by this court. Furthermore, plaintiff has failed to establish a prima facie case of race discrimination pursuant to Title VII with respect to any actions or decisions within the limitations period. Therefore, summary judgment is proper with respect to all claims asserted by the plaintiff.
• Order IT IS THEREFORE ORDERED that plaintiff's motion to supplement (Doc. 39) is granted.
IT IS FURTHER ORDERED that defendant's motion for summary judgment (Doc. 28) is granted in its entirety. All of plaintiff's claims are dismissed with prejudice.
Dated this day of January 2001, at Kansas City, Kansas.