Opinion
No. WMN-00-1583.
March 13, 2001.
MEMORANDUM
Before the Court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (Paper No. 4). Plaintiff opposed this motion, as well as filed her own motion for an order permitting immediate discovery and deferral of determination of Defendants' motion for dismissal/summary judgment (Paper No. 7). Upon a review of the motions and the applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6) and that Plaintiff's motion will be denied, and Defendants' motion granted.
I. BACKGROUND
Plaintiff Eloise Seward, a 55 year old, African American woman, worked in the Harford County Library System from 1990 to 1999. At the time that she resigned in August of 1999, she was working as a Computer Technician. The central allegation in her complaint is that, throughout the course of her employment with the Library, she was denied, on account of her race, a series of promotions for which she was otherwise qualified. The record before the Court reveals the following.
Plaintiff was hired in September 1990 as a "Circulation Substitute." At the time of her hiring, Plaintiff had no prior employment history either with a library, or in the computer field. Her initial salary was $5.94 per hour. Less than two months after being hired, Plaintiff was promoted to the position of "Cataloging Assistant" and her salary was increased over 24% to $7.42 per hour. In July 1992, Plaintiff accepted a temporary grant funded position of "Data Entry Clerk," where she remained until November 1995. In 1993, the salary for this position went from $8.75 per hour to $10.66 per hour and Plaintiff was also made a full time employee and provided with a full benefits package.
In November 1995, Plaintiff was promoted to the position of "Computer Assistant." Although this position was posted as a 35 hour per week position with part-time benefits, the Library allowed Plaintiff to maintain her 37.5 hour workweek with full time benefits by reducing the hours/benefits for the Data Entry Clerk position that Plaintiff was vacating. With the change of position, Plaintiff was also offered a 7.9% pay raise which would have taken her salary to $11.51 per hour. Plaintiff requested an hourly rate of $12.50 per hour and Plaintiff and the Library ultimately agreed to an hourly rate of $11.73 per hour. Seven months after Plaintiff moved into this new position, the Library adjusted this wage to $12.09 per hour, and made the adjustment retroactive to Plaintiff's promotion date.
In July 1998, Plaintiff's position was changed from that of Computer Assistant to that of "Computer Technician." While Plaintiff asserts that this was not a promotion but merely a reclassification, her salary grade was increased from Grade 6 to Grade 10, resulting in an increase in salary to $16.92 per hour.
In that same month, Plaintiff applied and was interviewed for the position of "Technology Administrator." Five candidates were interviewed and the position was ultimately awarded to a white female, Gia Wilhelm. Plaintiff alleges in the Complaint that Wilhelm was less qualified than herself for the position. Complaint at ¶ 25. Plaintiff had a bachelor's degree by this time, whereas Wilhelm did not. Plaintiff also points out that Wilhelm had no library experience prior to being hired as the Technology Administrator.
In her complaint, Plaintiff brings claims of: racially "discriminatory nonselection" and "discriminatory compensation" in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count I), 42 U.S.C. § 1981 (Count II), 42 U.S.C. § 1983 (Count III), and Article 24 of the Maryland Declaration of Rights (Count IV); "gender discriminatory compensation" in violation of the federal Equal Pay Act, 29 U.S.C. § 206(d) (Count V), and the Maryland Equal Pay for Equal Work Act, Md. Code, Labor Empl. § 3-304 (Count VI); and a state law claim of defamation related to the manner in which she was treated upon her resignation (Count VII). Plaintiff has named as defendants Harford County, Maryland [the County] and two of her superiors, Irene Padilla, the Director of the Harford County Department of Libraries, and Terri Schell, the Department of Libraries' Manager of Human Resources.
Defendants have moved to dismiss, or for summary judgment as to all claims against all Defendants on the grounds that:
1) the County was not her employer and thus, is not a proper party to be sued;
Because the Court concludes that Defendants are entitled to judgment on other grounds, it need not reach the issue as to whether the County was a proper party to be named.
2) many of her claims are time barred and/or have not been administratively exhausted;
3) she cannot establish a prima facia case as to the remaining discrimination claims; and
4) the Court should, in its discretion, decline to exercise pendent jurisdiction over Plaintiff's state law claims.
II. ANALYSIS
A. Legal Standards
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) ought not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47; Comet Enterprises Ltd. v. Air-A-Plane Corp., 128 F.3d 855, 860 (4th Cir. 1997). In reviewing the complaint, the court accepts all well-pled allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997). The court need not, however, accept unsupported legal conclusions, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
When, however, "matters outside the pleading are presented to and not excluded by the court, the Rule 12(b)(6) motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b). Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to summary judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of summary judgment, a dispute about a fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a fact is material if, when applied to the substantive law, it affects the outcome of litigation. Anderson, 477 U.S. at 248.
A party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying the portions of the opposing party's case which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant demonstrates that there is no genuine issue of material fact and that she is entitled to summary judgment as a matter of law, the non-moving party must, in order to withstand the motion for summary judgment, produce sufficient evidence in the form of depositions, affidavits or other documentation which demonstrates that a triable issue of fact exists for trial. Celotex, 477 U.S. at 324.
Under Fed.R.Civ.P. 56(f), summary judgment should not be granted until after the party opposing summary judgment has had an opportunity to complete relevant discovery. In order for a Rule 56(f) continuance to be granted, however, the moving party must supply an affidavit stating what discovery is needed in order to prepare the party's case. See Strag v. Board of Trustees, 55 F.3d 943, 953-54 (4th Cir. 1995).
B. Scope of Plaintiff's Discrimination Claim
The two jurisdictional prerequisites to a Title VII action are (1) filing timely charges of employment discrimination with the EEOC; and (2) receiving and acting upon the EEOC's notice of the right to sue. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). There is no dispute that the Plaintiff acted in a timely manner upon receiving her notice of right to sue.
To establish that she had filed a timely charge, Plaintiff asserts in her complaint that she "filed an administrative charge with the U.S. Equal Employment Opportunity Commission ("EEOC") . . . within 300 days of at least one of the incidents of continuing discrimination complained of herein." Complaint at ¶ 31. The Complaint, however, avoids providing the date on which the administrative charge was filed. Defendants also refrain from providing that date in their pleadings, but supply what appears to be the relevant date by attaching a copy of Plaintiff's EEOC charge dated July 7, 1999. Motion Exh. 14. Without reference to the date on which they contend the EEOC charge was filed, Defendants declare that only claims concerning actions that occurred on or after September 11, 1998, should be considered timely.
The parties' positions on the timeliness issue are confusing, at best. Plaintiff argues that she is entitled to the application of the provision in 42 U.S.C. § 2000e-5(e)(1) that allows that a charge can be filed within 300 days of the alleged unlawful employment practice where the allegedly aggrieved individual has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such actions. 42 U.S.C. § 2000e-5(e)(1). To support her theory of entitlement to the 300 day limitations period, Plaintiff included in a supplemental affidavit filed several months after her opposition, evidence that she contacted the Harford County Human Relations Commission in March of 1999, but was referred to the EEOC. And while Plaintiff is critical of Defendants for "neglect[ing] to say when they contend that Plaintiff filed her complaint with the EEOC," Opposition at 4, Plaintiff shows that same reserve. She does reference, however, the fact that Defendants attached a copy of her EEOC charge dated "7/7/99" and the Court can only conclude that she is advancing no other date as the date of filing.
Defendants on the other hand, argue strenuously that the relevant limitations period is 180 days, and not 300 days, noting that Plaintiff never averred that she filed a charge of discrimination with a state or local agency. Yet, when computing the relevant cut-off date for timely claims, Defendants inexplicably appear to have used 300 days as the relevant limitations period.
July 7, 1999, the date Plaintiff filed her EEOC complaint was 300 days after September 11, 1998, the date after which Defendants contend an alleged discriminatory act must have occurred in order to be actionable.
The Court will assume, for the purpose of this opinion, that Plaintiff is correct and that the 300 day period is applicable, and that Defendants are also correct that September 11, 1998, is the relevant cut off date. Following this assumption, the only adverse employment action taken by Defendants against Plaintiff that is within the limitations period, and that is included in the Complaint, is Plaintiff's rejection for the Technology Administrator's position in October 1998. Thus, the Court's inquiry should be limited to claims arising out of that decision. See Beall v. Abbott Laboratories, 130 F.3d 614, 620-21 (4th Cir. 1997) (holding that where a charging party fails to comply with this statutorily mandated filing period, alleged discriminatory acts which occurred more than 300 days prior to the filing of the EEOC charge may not be subsequently challenged in a Title VII suit).
The date that Wilhelm was chosen over Plaintiff for the position, or the date that Plaintiff learned of that decision, is not contained in the Complaint. As with the date of the filing of the EEOC charge, this date is supplied by Defendants with their motion. Motion Exh. 10, Affidavit of Kenneth Boyle at ¶ 3 ("Gia Wilhelm was hired in October of 1998"); Motion Exh. 14, Plaintiff's EEOC charge ("In October, 1998, I learned that I was not selected for the position of Technology Administrator.")
Although also not in the Complaint, Defendants disclose in their motion that in June 1999, Plaintiff applied for a position as Network Manager. Motion at 4. Perhaps the reason Plaintiff failed to mention this fact is that she was, in fact, offered the position for which she applied. The position offered included a 10% promotional increase, with a 6% increase the following fiscal year, which would have resulted in a salary of $41,750. After the Library rejected Plaintiff's counter-proposals regarding the salary, Plaintiff ultimately turned down the offer of this position and resigned shortly thereafter.
Plaintiff seeks, however, under the "continuing violation" theory, to extend her claim to include alleged adverse employment actions that occurred as early as 1992. Under the law of this circuit, continuing violations may consist of either a series of related acts, Beall, 130 F.3d at 620-21, or the maintenance of a discriminatory policy or system. See Lindemann, B. Grossman, P., Employment Discrimination Law 1361 (3d. ed. 1996). The theory is available only if an actual violation has occurred within the required limitations period. Beall, 130 F.3d at 620-21. Assuming that Defendants' decision not to promote Plaintiff to the position of Technology Administrator in October 1998 was an alleged violation within the limitations period, the Court, nonetheless, finds the continuing violation theory inapplicable in this instance.
A useful analysis of the theory, borrowed from the Fifth Circuit but consistent with Fourth Circuit precedent, is found in Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). There, the Fifth Circuit recommended a non-exhaustive list of three factors to consider in determining the existence of a continuing violation. First, do the alleged acts involve the same type of discrimination? Berry, 715 F.2d at 981; Khan v. Jenkins, 1987 WL 36862 at *3 (4th Cir. 1987) ("a continuing violation can be shown only by allegations detailing the same type of discriminatory action or violation"), cert. denied, 484 U.S. 1061 (1988). Second, are the incidents recurring or are they independent and isolated events? Berry, 715 F.2d at 981. Finally, did the earlier acts have sufficient permanency to trigger the employee's awareness of and duty to challenge the alleged violation? Id.; Lindemann Grossman at 1362 ("courts frequently reject continuing violation claims when the plaintiff understood that the earlier action(s) were not to be temporary or tentative — particularly when the plaintiff was aware of, or at least suspected discrimination at the time the earlier action(s) were taken"); Talbot v. Mobil Corp., 46 F. Supp.2d 468, 472 (E.D.Va. 1999).
The continuing violation theory, a type of equitable tolling, applies where the "plaintiff proves `that it would have been impossible for a reasonably prudent person to learn that [an employment action] was discriminatory.'" Olson v. Mobil Oil Corp., 904 F.2d 198, 200 (4th Cir. 1990) (quoting Miller v. Int'l Tel. and Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985)). Such impossibility exists only where the plaintiff is unaware of the facts giving rise to the claim because the defendant has intentionally concealed them. Id. at 201.
Defendant correctly argues that Plaintiff cannot sustain a claim of "continuing violation" in the present case. Plaintiff alleges that in 1992, she and a white male coworker were given disparate pay raises for "equally stellar performance." Complaint at ¶ 11. She alleges that in February 1993 and December 1993, she applied for positions that were subsequently given to less qualified white individuals. Id. at ¶¶ 12, 13. In 1995, according to Plaintiff, she was required to "work beyond her position description" while "nonblack employees . . . were paid commensurately for the skill level of the work they performed." Id. at ¶ 17.
Plaintiff appears to have been well aware of which individuals were awarded the positions for which she applied, as well as their relative qualifications. She provides no explanation, whatsoever, as to how she may have been prevented from discovering the alleged discriminatory motivation behind these decisions. Looking to the nature, frequency, and number of the alleged acts that Plaintiff states she considered to be discriminatory, the Court finds that a reasonably prudent person would have, at a point well before July 1999 (the time of the filing of Plaintiff's EEOC charge), questioned the existence of a discriminatory promotion process.
As Plaintiff cannot satisfy her burden of establishing a "continuing violation" as the courts have defined that term, this Court's analysis will be restricted to Plaintiff's claim that the Library failed to select her for the position of Technology Administrator in October 1998.
Plaintiff's other discrimination claims based upon other statutes carry somewhat longer limitations periods. None of those limitations periods, however, reach back far enough to encompass any of Plaintiff's remaining denial of promotion claims.
C. Proof Scheme for Discrimination Claim
In order to show intentional discrimination, the plaintiff can present either direct or indirect evidence. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997), abrogated on other grounds by, Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999). The necessary proof to indirectly establish a claim of disparate treatment (such as the failure to promote) is encompassed within a three-part framework: (1) the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence, id.; (2) the burden then shifts to the defendant who must articulate a legitimate, nondiscriminatory reason for the adverse employment action, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); and (3) the burden shifts back to the plaintiff to demonstrate that the reason offered by the employer is false, Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000). The Court finds, as explained below, that Plaintiff fails to adequately support her claim of discrimination, as she is unable to either establish a prima facie case of discrimination, or demonstrate that Defendant's reason for its failure to promote her was pretextual.
Plaintiff offers no direct evidence of discrimination. Plaintiff does not allege that anyone associated with the Library ever made any racially derogatory remarks or by conduct, directly exhibited any racial animus.
1. The Prima Facie Case
In order to establish a prima facie case of failure to promote, Plaintiff must show by a preponderance of the evidence that "(1) she is a member of a protected class; (2) there was an open position for which she applied or sought to apply; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Evans v. Technologies Applications and Svc. Co., 80 F.3d 954, 958 (4th Cir. 1996). While Plaintiff can certainly establish the first and second element of the prima facie case, and might arguably be able to establish the third, the Court finds that she cannot establish the last remaining element, that is, that her non-selection for the position of Technology Administrator occurred under circumstances giving rise to an inference of discrimination.
Wilhelm, the candidate who was selected for the position over Plaintiff, had four years of experience in private industry as a network administrator before being hired by the Library. Motion Exh. 9, Wilhelm Resume. She had broad experience in the design, implementation, and management of Wide Area Network (WAN) and Local Area Network (LAN) systems similar to those for which she would be responsible at the Library. At the time she was hired, she had eleven years of experience in the information technology field. Id. In addition, Wilhelm had several years of supervisory experience. Id.
In contrast, Defendants represent that Plaintiff's position at the Library did not involve either the design or installation of networks. They also represent that Plaintiff had no supervisory responsibilities or experience. Motion Exh. 2, Aff. of Irene Padilla at ¶ 5; Motion Exh. 10, Aff. of Kenneth Boyle at ¶ 3-6. In the affidavit Plaintiff submitted with her opposition to the motion, Plaintiff refutes neither representation, but simply states, "I am personally aware that information can be obtained through reasonable discovery efforts that would generate facts inconsistent with the material facts asserted by Defendants in support of their [motion for summary judgment]." Plaintiff's Aff. at ¶ 4. Certainly, Plaintiff would have had available to her knowledge of her own qualifications and experience with which to oppose the motion, without the need for discovery.
Well beyond the time allowed under the Local Rules for opposing the motion, Plaintiff submitted, without leave of Court, a "Supplemental Affidavit" in which she states that she had "adequate experience with the WAN and LAN systems" and had "comparable technical and supervisory experience" as Wilhelm. Supp. Aff. at ¶ 3. Even had Plaintiff raised these assertions in a timely manner, which she did not, these statements are nothing more than unsupported opinions as to her own qualifications.
More significant in negating any inference of discrimination than the candidates' comparative qualifications, however, is Plaintiff's own employment history with the Library. The record reveals that Plaintiff was hired and repeatedly moved into new positions with greater responsibility and greater financial rewards by the same individuals that she now claims discriminated against her. While Plaintiff seeks to diminish the significance of this history by claiming that only one of the advancements discussed, supra, was a promotion and all others were merely "job reclassifications," Supp. Aff. at ¶ 1, she does not dispute that, in less than nine years at the library, she went from a part-time position paying less than $6.00 an hour to a full time position paying almost $17.00 an hour, with full benefits. Although Plaintiff elected to omit mention of this in her complaint, Plaintiff was also offered a different promotion, that of Network Manager, within several months of the denial about which she now complains.
In situations where a plaintiff is the subject of an adverse employment decision made by the same individual or individuals that hired or promoted the plaintiff, courts have reasonably concluded that "a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991); see also Henson v. Liggett Group, Inc., 61 F.3d 270, 277 (4th Cir. 1995) ("'employers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing.'") (quoting Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 513 (4th Cir. 1994)). Here, Plaintiff's undisputed history of advancement within the Library system under the same supervisors that denied her this particular promotion, undercuts any plausible inference of discrimination.
2. Defendant's Legitimate Nondiscriminatory Reason and Plaintiff's Burden of Demonstrating Pretext
Were the Court to find that Plaintiff had established a prima facie case of discrimination, Defendants would, nonetheless, be entitled to summary judgment, in that Defendants have proffered a legitimate nondiscriminatory reason for hiring Wilhelm instead of Plaintiff for the Technology Administrator position. As explained above, Defendants determined that Wilhelm was better qualified for the position. "[R]elative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision." Evans, 80 F.3d at 960. Thus, the burden shifts back to Plaintiff to demonstrate that Defendant's proffered reason is false and merely pretextual. See Reeves, 120 S.Ct. at 2106. Plaintiff has failed to meet that burden. As the Fourth Circuit held in Lowery v. Circuit City Stores, Inc., "[t]he mere assertion [by the plaintiff] that [the plaintiff] was more qualified is insufficient to establish pretext." 158 F.3d 742, 763 (4th Cir. 1998), vacated on other grounds, 119 S.Ct. 2388 (1999). Accord Vaughn v. Metra Health Cos., Inc., 145 F.3d 197, 202 (4th Cir. 1998).
Nor has Plaintiff shown why discovery would be necessary for her to establish her own qualifications, and that they were equal or superior to those of Wilhelm.
D. Plaintiff's Remaining Claims
Plaintiff's Equal Pay Act claims, both federal and state, arise out of her allegation that a male Computer Technician received greater compensation than she for comparable work. See Complaint at 24. In addition to the fact that Plaintiff's gender based discrimination claim is at odds with her claim that she was discriminated against on the basis on race, Plaintiff's assertion that she received disparate compensation is also contrary to the undisputed facts. In Defendant Irene Padilla's affidavit, she explains that both Plaintiff and her male co-worker were paid at the same hourly rate, despite the fact that the male employee had been with the library longer.
The male employee's salary was slightly higher because he worked a 40 hour week, where Plaintiff worked a 37 1/2 hour week. Padilla Aff. at ¶ 10. In her opposition, Plaintiff does not dispute this representation.
The reason for this discrepancy is that the co-worker was hired by the Library before the Library instituted a shorter work week policy and he was allowed to continue under the old policy. Plaintiff was hired after the policy change. Id.
As for Plaintiff's remaining state law claims, the Court declines to exercise jurisdiction. Where a district court has dismissed all claims over which it has original jurisdiction, it may decline, at its discretion, to exercise jurisdiction over supplemental state law claims. 28 U.S.C. § 1365.
III. CONCLUSION
For all of the foregoing reasons, Defendants' Motion for Summary Judgment will be granted. A separate order will issue.
ORDER
Pursuant to the foregoing memorandum, and for the reasons stated therein, IT IS this day of March, 2001, by the United States District Court for the District of Maryland, hereby ORDERED:
1. That Defendants' Motion for Summary Judgment (Paper No. 4) is GRANTED;
2. That Plaintiff's Motion for Order Permitting Immediate Discovery, and Deferral of Motion of Defendants for Dismissal/Summary Judgment (Paper No. 7) is DENIED;
3. That judgment is entered in favor of Defendants and against Plaintiff;
4. That this action is hereby CLOSED;
5. That any and all prior rulings made by this Court disposing of any claims against any parties are incorporated by reference herein and this order shall be deemed to be a final judgment within the meaning of Fed.R.Civ.P. 58; and
6. That the Clerk of the Court shall mail or transmit copies of the foregoing memorandum and this order to all counsel of record.