Opinion
CIVIL ACTION NO. 3:01-CV-2109-P.
February 19, 2003.
MEMORANDUM OPINION AND ORDER
Now before the Court is the following:
1. Defendant's Motion for Summary Judgment, with brief in support and appendix, filed December 16, 2002;
2. Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, with brief in support and appendix, filed January 10, 2003;
3. Defendant's Reply Brief to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed January 17, 2003; and
4. Plaintiff's Opposed Motion for Leave to File Sur-Reply in Support of Her Response in Opposition to Defendant's Motion for Summary Judgment, filed January 21, 2003.
After a thorough review of the parties' briefs and the applicable law, for the reasons set forth below, the Court concludes that Defendant's Motion for Summary Judgment should be GRANTED, and Plaintiff's Motion to file Sur-Reply be DENIED as moot.
Additionally, the Court notes that it was improper for Plaintiff to file a forty (40) page Response which included facts and arguments that should have been incorporated in the Brief. In the future, filings of this nature will not be considered by the Court and will be unfiled.
BACKGROUND
Plaintiff Kathy Kern ("Plaintiff" or "Kern") filed her Complaint against GE Capital Information Technology Solutions ("GECITS") October 19, 2001 alleging she was discriminated against on the basis of sex during her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended ("Title VII"), the Equal Pay Act, 29 U.S.C. § 206(d) as amended ("EPA"), the Texas Commission on Human Rights Act, Tex. Labor Code § 21.001, et seq., ("TCHRA") and the Texas common law claims of quantum meruit, fraud, waiver and estoppel.
Kern began working for GECITS in 1996 in Product Procurement. In March 1999, she was promoted to Senior Product Marketing Manager, reporting to Margaret Gilbert, Vice President and Marketing Product General Manager of Software in the Dallas office. In 1999, Gilbert allegedly assigned Kern to perform management duties of GECITS' software line of business, which assignment Kern accepted hoping for a promotion in the future. Kern also stated that she assumed Gilbert's position in the end of 1999, when Gilbert was preparing to leave GECITS. As Kern was beginning to assume these extra responsibilities, Kern asked Gilbert if she would be compensated for the extra work. Kern contends that Gilbert said Kern would be compensated for the extra work. P's Rsp. at 13. Gilbert stated that she consulted with her boss, Fred Pugh, concerning additional compensation for Kern. Id. In early 2000, Pugh awarded Kern a $5000 bonus for taking on additional duties and because the Software department showed a profit for 1999. Id.
In August 1999, Kern alleges that she was given additional responsibilities and was asked to assume management duties as the Global Account Manager for GECITS' GE account. Kern admits that at the time she was asked to assume these additional responsibilities, no mention of additional compensation was made. D's App. at 81. Kern cannot specifically remember speaking to anyone about additional compensation until December 1999 when she spoke to Dennis Hummel. During this conversation, Kern expressed her disappointment that she had not received additional compensation. Hummel allegedly brushed Kern off telling her they would talk about it later. D's M.S.J. at 7.
From early 1999 to January 2000, Gilbert, Pugh, and Ed Lynse all spoke to Kern about the possibility that she would have to relocate to Kentucky because of the changing structure of the company. Kern never definitively said that she would move to Kentucky, but said that it would be difficult to move, and that she would need a written offer to be able to decide if she could move. D's M.S.J. at 8-9.
In January 2000, GECITS hired Dan Doster as the Vice President of Marketing, who reported to Dennis Hummel, the then President of the Products group. Kern began reporting to Doster and continued to do this throughout her employment at GECITS. In February 2000, Doster decided to centralize marketing in Kentucky, which required closing other facilities. Kern spoke with Doster about relocating, and said it would be very difficult to relocate and no one had given her an offer. Doster suggested Kern talk to Ken Luke, the Vice President of Sales. Luke referred Kern to a new sales director, Steve Littlefield. While Littlefield was hopeful that Kern could move into sales, it did not ultimately materialize into a position for Kern. When she realized that she would not be joining the sales group, Kern asked Littlefield how she would be compensated for the additional work she had already done on the GE Global account. Littlefield never gave her a definitive answer, but told her he would talk to Doster about it.
In May 2000, Doster became deeply involved with Project Phoenix, an intensive process focused on deciding whether or not GECITS should sell, close or reform its business. It was a very confidential project of which Kern was not a part. By then end of March 2000, Kern was the only Marketing employee who was not located in Kentucky. On July 17, 2000, Kern was laid off. Doster stated that he terminated Kern as a part of GECTIS' company-wide reduction-in-force case. Due in large part to Project Phoenix, GECITS laid off approximately half of its work force, including males and females. Any of the remaining job responsibilities after Kern's termination were reassigned to other employees in Kentucky. Following her termination, Kern submitted her claims to GECITS' internal dispute resolution program called RESOLVE. Kern and GECITS participated in an unsuccessful mediation that was followed by this lawsuit.
DISCUSSION
I. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett., 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. at 323. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242,248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1999); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. Sex Discrimination Claim
Title VII provides that "it shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In a sex discrimination case, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The prima facie case, if established, raises a presumption of discrimination. The defendant must rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the defendant satisfies this burden, the presumption disappears, and the plaintiff must prove that the proffered reasons are a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 507 (1993). The plaintiff retains the ultimate burden of persuasion throughout the case. Burdine, 450 U.S. at 256.
The Fifth circuit has recognized that discrimination claims under the TCHRA are evaluated using the same analytical framework set forth in Title VII cases. Evans v. City of Houston, 246 F.3d 344, 349 (5th Cir. 2001). Therefore, the Court will consider these claims together.
To establish a prima facie case of discrimination under Title VII, a plaintiff must prove that: (1) she is a member of a protected class; (2) she was qualified for the position that she held; (3) she was discharged; and (4) after the discharge others who were not members of the protected class remained in similar positions. Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995).
The fourth element depends on if the employee was replaced, or if the defendant did not plan to replace her (a reduction in force case). In replacement cases, the fourth element is that after being discharged, her employer replaced her with a person who is not a member of the protected class. The fourth element in a reduction in force case is articulated above. Plaintiff argued that this was not a reduction in force case, but a discriminatory firing or replacement case. However, the Court finds that this was a reduction in force case because Kern's position was terminated and no one was hired to replace Kern. Other employees absorbed Kern's responsibilities after her termination, but that does not create a replacement case rather than a reduction in force case.
In establishing the forth prong of her prima facie case, Kern merely states that "all of the people who assumed Kern's Marketing and Sales duties after she was terminated were male." P's Brief at 7. Merely stating this in conclusory terms does not satisfy that fourth element of the prima facie case. The Fifth Circuit contemplated a similar situation in Meinecke v. H R Block of Houston, 66 F.3d 77 (5th Cir. 1995). In Meinecke, Plaintiffs office was shut down, and she was laid off. Id. at 80. Employees from a separate consulting firm assisted the company in carrying out administrative and management functions previously carried out by Plaintiff. The Court notes the difference here: in Meinecke, an employee of another company performed Plaintiff's responsibilities after she was laid off, while in the case at hand, individuals from another office assumed Kern's responsibilities. However, in Meinecke, the Court stated that "[Plaintiff's company] eliminated [Plaintiff's] position and closed the headquarters office where she worked. Under these facts, Meinecke cannot show that males remained in similar positions after she was discharged." Id. at 84.
It is undisputed that at the time of her termination, Kern was the only person at GECITS holding the position of Senior Product Marketing Manager of Software, Kern was the only Marketing employee located in Dallas, that GECITS shut down the Marketing operation in all of its remote locations including Dallas, and that no one replaced Kern in Dallas. Kern's responsibilities were incorporated into the job responsibilities of others located in Kentucky. D's M.S.J. at 29-30. Thus, it is clear that, as in Meinecke, after Kern's termination others not in the protected class were not kept in similar positions. GECITS' choice to have male employees absorb responsibilities that were once performed by Kern does not mean that GECITS kept males in similar positions after Kern's employment ended. Because Kern cannot satisfy the final element to prove a prima facie case of sexual discrimination, that after the discharge males remained in a similar position, GECITS' Motion for Summary Judgment is GRANTED as to Kern's Title VII claim.
The Court also notes that if Plaintiff had successfully proved her prima facie case for sexual discrimination, Defendant offered a legitimate, nondiscriminatory reason for Kern's termination. Defendants states, "Doster made the decision to layoff Kern because she was unwilling to move to Kentucky." D's Reply at 2. Because Kern presented no evidence that Defendant lacked a good faith belief that Kern was unwilling to relocate to Kentucky, Kern has not created a fact issue that the proffered reason was a pretext for discrimination.
III. Equal Pay Act Claim
To establish a prima facie case under the EPA, Kern must show that (1) GECITS is subject to the EPA; (2) she performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and (3) she was paid less than a man. Jones v. Flagship Int'l, 793 F.2d 714, 722-23 (5th Cir. 1986).
Defendant contends that the Court need not reach the second element of the prima facie case because Plaintiff cannot prove the third element of her EPA claim, that Plaintiff was paid less than a man. When Plaintiff left in 2000, her annual salary was $90,110.18. She was also paid an additional $5400 in bonuses. Defendant compares Kern's salary to Sterling, Smith, Kershaw, and Winters' salaries. It is undisputed that Kern earned more than Sterling and Kershaw. Therefore, Kern cannot establish her prima facie case as to them because she was not paid less than they were.
Plaintiff contends that to decide if Kern was paid less than Smith, the proper inquiry would be to compare her salary to his salary. The EPA states that employers cannot discriminate between employees on the basis of sex "by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 USCS § 206(d). To determine if wages paid to Kern were less than the wages paid to Smith, the Court turns to the definition of wages. "Under the EPA, the term `wages' generally includes all payments made to . . . an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment . . . whether called . . . bonus." 29 C.F.R. § 1620.10 (2003). Thus, the Court compares Kern's wages of $95,510.18 to Smith's wages of $95,000. Because Kern earned more than Smith in 2000, she cannot establish the third element of an EPA prima facie case. Because Doster and Littlefield did earn more money than Kern, the Court must determine if she performed work in a position requiring equal skill, effort and responsibility under similar working conditions as Doster and Littlefield. The EPA applies to "jobs requiring equal skills, not to employees who possess equal skills." Cox v. Home Ins. Co., 637 F. Supp. 300, 302 (N.D.Tex. 1985). Thus, the focus is on the job. Doster was the Vice President of Marketing, which means he over saw all Marketing activities for GECITS. Kern was a Senior Product Marketing Manager, but reported to Doster. Doster supervised approximately thirty-three employees. Doster was involved in Project Phoenix, a confidential project whose goal was to restructure and streamline the company, and Kern was not. The Court therefore finds a that Kern did not work in a position that required skill, effort and responsibility as Doster.
Plaintiff specifically responds regarding Smith's earnings compared with Kern's earnings. However, Plaintiff does not address Winter's earnings compared to Kern's earnings. The Court notes that Winters earned $92,250, which was more than Kern's salary of $90,000. The Court uses the same analysis to compare Winter's salary to Kern's salary as the parties did to compare Smith's salary to Kern's salary.
The Court also notes that Kern's wages of $95,510.18 are greater than Winter's wages of $92,250. Therefore, Kern cannot establish her EPA claim as to Winters.
In comparing Kern to Littlefield, it seems apparent that the jobs performed were different. Kern did not even know what Littlefield's job responsibilities were. D's M.S.J. at 37. However, she still claims that their jobs were similar. Littlefield was the Director of Strategic Accounts for the GE Accounts and focused on the sales and hardware. Conversely, Kern focused on marketing and software. Kern produced no evidence that her job responsibilities were similar to Littlefield's responsibilities. The Court in Cox stated, "it is the overall job, not its individual segments, that must form the basis of comparison." Id. Thus, even if a portion of their jobs overlapped, this would not be enough to prove and EPA violation.
Because Plaintiff cannot establish her prima facie case, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's EPA claim.
IV. Quantum Meruit
Kern seeks to recover under a theory of quantum meriut for additional duties she performed for Gilbert as well as for the GE Global Account Manager duties that Shank allegedly assigned to Kern. Quantum meruit, founded on the principle of unjust enrichment, is an equitable remedy which does not arise out of contract, but is independent of it. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (1990). To recover under quantum meruit a claimant must prove that:
1) valuable services were rendered or materials furnished;
2) for the person sought to be charged;
3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him;
4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.
It is evident that Kern rendered valuable services to GECITS. Kern performed additional duties per Gilbert's request. However, Kern was later compensated for the additional work she did. Kern stated, "Pugh awarded Kern a $5,000 bonus, as an acknowledgment of her hard work taking on the additional duties, and because the Software department showed a profit on its PL for 1999." P's Response at 14. Thus, Kern's claim that she was not compensated for these addition duties she performed for Gilbert is unfounded.
In August 1999, Kern agreed to take on additional responsibilities as GECITS' GE Global Account Manager. When she accepted these additional responsibilities, no mention of additional compensation was made. In April 2000, Kern spoke with Littlefield inquiring about the possibility of a sales position. A week later, Littlefield told Kern that there was no position available for her. It was during this conversation that Kern asked about receiving additional compensation for performing the duties as GECITS' GE Global Account Manager. Kern stated in her deposition that when she asked Littlefield how she was going to get paid, Littlefield said that he would have to get with Doster and figure it out. P's App. at 287, 303. Hence, Littlefield did not promise to pay Kern, but stated that he would check with Doster and get back with Kern. The Court notes that Littlefield never got back with Kern regarding the additional compensation, so it is curious that Kern would rely on this fact so heavily when articulating her quantum meruit claim.
In another section of the deposition when Kern was discussing this same situation, she said that she asked Littlefield, "what about my compensation," to which he responded "I will get with Dan and see what we can do to compensate you and split the compensation on the PL." P's App. at 227.
In Kern's affidavit she stated that Littlefield told her that she would get paid additional compensation. P's App. at 14. However, this statement in her affidavit is the first instance that Kern conclusively stated that Littlefield did in fact tell her she would be paid. Each time Kern related this situation in her deposition, she never affirmatively stated that Littlefield told her she would be paid, but merely stated that Littlefield told her he would get with Doster to figure out how to pay her. Kern cannot create a fact issue by giving a different version of the story in an affidavit prepared for summary judgment that conflicts with her deposition testimony. The Fifth Circuit stated that "a party who has already given deposition testimony about a subject cannot defeat a summary judgment motion by submitting an affidavit on a material issue that contradicts his prior deposition testimony." Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988).
Kern accepted additional responsibilities in August of 1999 and did not inquire as to additional compensation for the performance of these duties until April of 2000. To establish a prima facie case for quantum meruit, Plaintiff must show that not only were Plaintiff's services accepted by Defendant, but that they were accepted under such circumstances as reasonably notified Defendant that Plaintiff was expecting to be paid by Defendant for the services rendered. The Court cannot find that Plaintiffs waiting eight months after accepting the additional duties before inquiring as to compensation reasonably notified Defendant that Plaintiff was expecting to be compensated additionally for her work.
The Court in Shannon v. S. Co. Energy Mktg., L.P., No. 14-01-01 165-CV, 2002 Tex.App. LEXIS 5489 (14th Dist. Houston, July 25, 2002) faced a similar situation to the case at hand. Plaintiff was hired as an at-will employee and paid an annual salary. Id at *3-4. Plaintiff was terminated and sued his employer under the theory of quantum meruit for the value of the services he rendered his employer. The Court stated, "a quantum meruit claim cannot apply to the services [Plaintiff] provided [employer] as an employee because those services were covered by whatever oral, at-will agreement was in effect that provided for payment of the salary [Plaintiff] acknowledges receiving." Id. at *7. Similarly, Kern was terminated and is now suing GECITS under quantum meruit for compensation for additional duties she performed as an at-will employee while being paid an annual salary. The Court agrees with the Fourteenth District in that Plaintiff cannot now sue to recover for additional duties that she performed while an employee for which she was compensated.
Therefore, the Court finds that Plaintiff has not presented sufficient evidence to create a fact issue as to whether if Defendant accepted Plaintiff's services under such circumstances that Defendant was reasonably notified that Plaintiff was expecting to be paid by Defendant for the services rendered. Thus, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's quantum meruit claim.
V. Fraud
Kern alleges that GECITS' agents made false representations to Kern regarding compensation for her Global Account Managerial work with the intent of inducing Kern to continue the work. P's Cmplt. at 16. Establishing a claim of fraud requires 1) a material misrepresentation, 2) which was false, 3) and which was either known to be false when made or was asserted without knowledge of its truth, 4) which was intended to be acted upon, 5) which was relied upon, and 6) which caused injury. Formosa Plastics Corp. USA v. Presidio Eng'rs Contrs., 960 S.W.2d 41, 47 (Tex. 1997). Because Kern was compensated for the work performed in 1999, the only statements that could be at issue here are those made to Kern by Littlefield telling her that he would talk to Doster about her additional compensation request.
Because Littlefield's statements referred to a future action, Kern must prove that at the time Littlefield made the representations, he had no intention of following through. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992). Here, Kern presented no evidence that Littlefield had no intention of having a subsequent conversation with Doster when he made the statement. In fact, Kern stated in her deposition that she felt the most comfortable with him and that he was the most sincere about trying to work out her compensation. D' App. at 124. Thus, with no evidence that Littlefield had no intention of following through, Kern cannot succeed on her fraud claim. Thus, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiffs fraud claim.
VI. Waiver and Estoppel
Kern asserts that because GECITS did not meet certain deadlines in its internal RESOLVE process, it has waived its defenses, or is estopped from defending Kern's lawsuit. P's Cmplt. at 17-18. However, it is clear that waiver and estoppel are not independent causes of action. The Texas Supreme Court stated, "[w]aiver and estoppel are defensive in nature and operate to prevent the loss of existing rights. They do not operate to create liability where it does not otherwise exist." Hruska v. First State Bank, 747 S.W.2d 783, 785 (Tex. 1988). Therefore, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's claims for waiver and estoppel.
CONCLUSION
Accordingly, upon careful review of the parties' arguments, the summary judgment evidence, and the relevant law, for the reasons stated above, the court GRANTS Defendant's Motion for Summary Judgment, and accordingly DENIES Plaintiff's Motion for Sur-Reply as moot.