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holding in the absence of a response, court has no duty to search for a kernel of evidence that might present a basis for denying summary judgment
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CA 3:01-CV-0128-R
March 18, 2002
MEMORANDUM OPINION AND ORDER
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Motion for Summary Judgment is before the Court. Plaintiff Sherry Fincher ("Fincher" or "Plaintiff") filed this suit against the City of Dallas ("the City of Dallas" or "Defendant"), alleging violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d)(1) (1994). Specifically, Plaintiff claims: (1) she was discriminated against because of her sex when the City of Dallas failed to pay her interim assignment pay; and (2) she was retaliated against for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") when the City of Dallas reassigned her and gave her a negative evaluation. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED as to all claims.
Defendant's Motion for Summary Judgment, filed December 6, 2001, includes a Notice of Default. The Notice of Default states that Defendant's Motion for Summary Judgment was served upon Plaintiff Sherry Fincher on November 15, 2001, and that no response was received. The Court's records further indicate that no response was ever filed.
Plaintift who is female, was hired by the City Auditor's Office ("CAO") in January 1999, as an Auditor 55 and was required to serve a six-month probationary period. In February 1999. while on probation, Plaintiff was assigned to complete an audit of the Love Field Airport after the auditor who had been handling the audit resigned. Plaintiff was on probation while working on the Love Field audit. Upon completion of the Love Field Audit, Plaintiff was assigned to the 911 performance audit in March 1999. Plaintiff worked on the 911 audit until March 2000. Plaintiff served as the auditor-in-charge on the Love Field audit and the 911 audit. The decision of who serves as the auditor-in-charge usually depends on the staffing of the audit.
Serving as the auditor-in-charge is not an exclusive duty of an Auditor 56. A minimum requirement for an Auditor 56 is a license as a Certified Public Accountant ("CPA") or a Certified Internal Auditor ("CIA"). At all relevant times, Plaintiff was not a licensed CPA or a CIA.
Interim Assignment Pay ("IAP") compensates permanent, full-time employees who have completed probation in their current position and who are asked to perform another employee's position on a short-term basis. To receive IAP, the employee and the interim position must meet six requirements:
(1) it must be a business necessity to perform the duties of the position;
(2) the position must possess a higher salary grade than the position the employee currently holds;
(3) the duration of the interim assignment must be thirty days or greater, but cannot exceed six months;
(4) the employee must be performing in the interim position as if the employee were hired or promoted into the position;
(5) the position cannot be split between two employees; and
(6) the employee must complete the first thirty days of the interim assignment before receiving the five percent salary increase.
Plaintiff did not receive IAP for serving as the auditor-in-charge on either the Love Field audit or the 911 audit. On March 6, 2000, Plaintiff submitted a letter of resignation to City Auditor Robert Melton ("Melton") indicating that her last day would be April 4, 2000. Plaintiff filed a charge of discrimination with the EEOC on March 8, 2000, claiming she was discriminated against because of her sex when she was not paid IAP.
On March 9, 2000, Plaintiff was informed that, beginning the next day, she was reassigned from the audit section of the CAO to the compliance section of the CAO until the effective date of her resignation. Thomas Taylor ("Taylor"), then the Assistant City Auditor, and Melton made the decision to reassign Plaintiff from the audit section of the CAO to the compliance section of the CAO. Plaintiff was reassigned because there were no audits she could have completed before the effective date of her resignation. Assignments in the compliance section were either short-term or segmentized and could be completed within the remainder of Plaintiff's time with the CAO. At the time of her reassignment, Taylor had no knowledge of Plaintiff's EEOC complaint and her complaint was never discussed.
On April 24, 2000, James Martin ("Martin"), the audit manager for the 911 audit, conducted a project evaluation. It is the normal course of business to conduct a project evaluation upon substantial completion of the project. Plaintiff was graded on her performance on various aspects of the project and received an overall performance rating on the project of below standard. At the time of her evaluation, Martin had no knowledge of Plaintiff's EEOC complaint. Plaintiff filed suit on January 18, 2001.
Defendant moved for summary judgment on all counts. Defendant argues Plaintiff cannot establish a Title VII sex discrimination case because: (1) Plaintiff cannot establish a prima facie case; (2) Plaintiff has no evidence that would permit a reasonable trier of fact to find that the City of Dallas' articulated reason for its action is a pretext for sex discrimination; and (3) Plaintiff cannot carry her burden of proving intentional discrimination. Defendant further argues that Plaintiff cannot establish a Title VII retaliation case because: (I) Plaintiff's claim is not cognizable under Title VII; (2) Plaintiff cannot establish aprima facie case; and (3) Plaintiff has no evidence that "but for" her protected activity, the City of Dallas would not have taken the actions in question. Defendant also argues that Plaintiff cannot establish an Equal Pay Act discrimination case because: (1) Plaintiff cannot establish aprima facie case; and (2) the City of Dallas can carry its burden of showing that Plaintiff was not given IAP because she did not qualify for it, not because of her sex.
III. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 55(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these cases. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). If the defendant, however, is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may be properly granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
B. Plaintiff's Title VII Sex Discrimination Claims
1. Gender Discrimination
Title VII prohibits employers from discriminating against an individual with respect to his compensation, terms, conditions or privileges of employment because, of among other things, sex. See 42 U.S.C. § 2000e-2(a)(1) (1994). To defeat a motion for summary judgment, a plaintiff must first establish a prima facie case of discrimination. See Fakuri v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5 Cir. 1997); Plemer v. Parson-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983). A plaintiff may prove her claim through direct evidence or statistical proof Urbano v. Continental Airlines, 138 F.3d 204, 206 (5th Cir. 1998). In this case, Plaintiff offers no direct evidence or statistical proof to support her discrimination claim.
In this case, Plaintiff alleges she was denied equal pay because she was not given IAP when three male auditors were given IAP. A plaintiff may also establish a prima facie case by presenting circumstantial evidence. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 587 (5th Cir. 1998). A claim based on circumstantial evidence is subject to the McDonnell Douglas test. Pursuant to the McDonnell Douglas test, aprima facie case is established if a plaintiff provides evidence that she: (1) was a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was replaced by someone outside the protected class. See id.
If a plaintiff establishes a prima facie case, a presumption of discrimination arises which the defendant may overcome by proffering a legitimate nondiscriminatory reason for the alleged disparate wage. See id.; Fakuri, 123 F.3d at 319; Plemer, 713 F.2d at 1136. A disparate wage payment is legitimate and nondiscriminatory if based on: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based upon any factor other than sex. Plemer, 713 F.2d at 1136. If the defendant satisfies this burden of production, the presumption raised by a plaintiff's prima facie case disappears. Fakuri, 123 F.3d at 319. Once the defendant has offered a legitimate nondiscriminatory reason for the salary discrepancy, it no longer has the burden of persuasion. Plemer, 713 F.2d at 1136. If the defendant carries its burden, a plaintiff bears the ultimate burden of persuading a court that she has been the victim of intentional discrimination Id.; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
In this case, Plaintiff cannot establish a prima facie case because she has no evidence she was qualified for IAP. Plaintiff was hired by the CAO in January 1999 as an Auditor 55 and was required to serve a six-month probationary period. The City of Dallas classified Plaintiff's position as a "growth-series position." "Growth-series positions" are budgeted for the highest position title within the series (e.g., Auditor 56, but can be filled with individuals in a lower compensation class code or Auditor 54 or Auditor 55, allowing them to "grow" over time into the budgeted position.) Therefore, a "promotion" made pursuant to the career growth series affects an individual's pay and job duties but not the position's title (e.g., Auditor 56). Because Plaintiff held a "growth-series position," she had the potential to "promote" from an Auditor 55, her current classification, to an Auditor 56, thereby increasing her duties and pay. In order to "promote" from an Auditor 55 to an Auditor 56, Plaintiff needed, among other things, a license as a CPA or a CIA. During all relevant times, Plaintiff was not a licensed CPA or a CIA.
In February 1999, while on probation, Plaintiff was assigned to complete an audit of the Love Field Airport after the auditor who had been handling the audit resigned. Upon completion of the Love Field audit, Plaintiff was assigned to the 911 performance audit in March 1999. Plaintiff remained on the 911 audit until March 2000. Plaintiff claims that she was entitled to IAP because she served as auditor-in-charge in both audits.
IAP compensates permanent, full-time employees who have completed probation in their current position and who are asked to perform another employee's position on a short-term basis. Employees who serve on an interim assignment will receive a five percent salary increase for the duration of the assignment. To receive IAP, the employee and the interim position must meet six requirements:
(1) it must be a business necessity to perform the duties of the position;
(2) the position must possess a higher salary grade than the position the employee currently holds;
(3) the duration of the interim assignment must be thirty days or greater, but cannot exceed six months;
(4) the employee must be performing in the interim position as if the employee were hired or promoted into the position;
(5) the position cannot be split between two employees; and
(6) the employee must complete the first thirty days of the interim assignment before receiving the five percent salary increase.
It is undisputed that the entire time Plaintiff was assigned to the Love Field audit, she was on probation. Because IAP is only available to permanent, full-time employees who have completed probation in their current position, Fincher was not eligible for IAP during the Love Field audit.
Regarding the 911 audit, Plaintiff fails to produce any evidence that she met the six requirements necessary to qualify for IAP. Defendant's Motion for Summary Judgment, filed December 6, 2001, includes a Notice of Default. The Notice of Default states that Defendant's Motion for Summary Judgment was served upon Plaintiff on November 15, 2001, and that no response was received. The Court's records further indicate that no response was ever filed by Plaintiff Rule 56 of the Federal Rules of Civil Procedure obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)); accord Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmovants do not bring forth in opposition to the summary judgment motion. See Doddy, 101 F.3d at 463 (citing Copsey v. Swearingen, 36 F.3d 1336, 1347 n. 9 (5th Cir. 1994). To satisfy their burden, the nonmovants are required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports their claim. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citingTopalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)). When the parties fail to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. See Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992). Because Plaintiff failed to file a response to Defendant's Motion for Summary Judgment, this Court has no duty to search for a kernel of evidence that might present a basis for granting summary judgment or denying it due to the presence of a genuine issue of material fact. Accordingly, summary judgment is proper because Plaintiff fails to establish that she was qualified for IAP, and, therefore, fails to establish a prima facie case of gender discrimination.
Furthermore, in the Motion for Summary Judgment, Defendant sets forth a compelling legitimate, nondiscriminatory reason for not paying Plaintiff IAP, namely that Plaintiff did not meet the six qualifications for IAP. In the Motion for Summary Judgment, Defendant also sets forth a strong argument that Plaintiff was not treated differently than male employees in nearly identical circumstances. Even if Plaintiff was able to establish a prima facie case of gender discrimination, this Court is of the opinion that Plaintiff is unable to carry the ultimate burden of proving intentional discrimination by Defendant. See St. Mary's Honor Ctr., 509 U.S. at 507; Swanson v. General Servs, Admin., 110 F.3d 1180, 1186 n. 1 (5th Cir. 1997).
2. Retaliation
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees" who have either availed themselves of Title VII's protections or assisted others in so doing.See 42 U.S.C. § 2000e-3(a) (1994). The Fifth Circuit applies theMcDonnell Douglas burden-shifting framework to Title VII retaliation cases, like the one at hand, in which a plaintiff presents only circumstantial evidence of retaliatory animus. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). To prove a prima facie case of retaliation under Title VII, a plaintiff must demonstrate: (1) that she engaged in protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. See id. (citing Mota v. University of Texas Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001)). If a plaintiff establishes a prima facie case, a rebuttable presumption arises and the defendant must produce a legitimate nondiscriminatory reason for the adverse action. See id. If the defendant satisfies its burden of production, the analysis shifts to the ultimate determination of whether the protected activity was a "but for" cause of the adverse employment action. See id.
Plaintiff alleges that the City of Dallas retaliated against her for filing a charge of discrimination with the EEOC by changing her assignment and giving her a negative evaluation. Plaintiff fails to establish two elements of her prima facie case: (1) that she suffered an adverse employment action following the protected activity (e.g., filing her complaint with the EEOC); and (2) that a causal connection existed between the protected activity and the adverse employment action.
"Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating. See Dollis, 77 F.3d at 782; Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). A change in assignment and a negative evaluation are not ultimate employment decisions. See Dollis, 77 F.3d at 782 see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) (holding verbal threats of being fired, reprimands, missed pay increases, and being placed on "final warning" do not constitute ultimate employment decisions actionable under Title VII). Therefore, in this case, Plaintiff fails to establish that she suffered an adverse employment action following the filing of her EEOC complaint. Furthermore, Plaintiff fails to establish a causal connection between the change of assignment and negative evaluation and the filing of her EEOC charge. On March 6, 2000, Plaintiff submitted a letter of resignation to City Auditor Melton indicating that her last day would be April 4, 2000. Plaintiff filed a charge of discrimination with the EEOC on March 8, 2000, claiming sex discrimination. On March 9, 2000, Plaintiff was informed that, beginning the next day, she was reassigned from the audit section of the CAO to the compliance section of the CAO until the effective date of her resignation. On April 24, 2000, Martin, the audit manager over the 911 audit, conducted a project evaluation and gave Plaintiff an overall performance rating of below standard.
Plaintiff provides no evidence that anyone in the CAO had knowledge of her EEOC complaint at the time of the alleged "adverse employment actions." Plaintiff admits that the only evidence she has to support her retaliation claim is the timing of her reassignment and negative evaluation. This evidence is insufficient to establish a causal connection and, therefore, summary judgment is proper. See Shirley, 970 F.2d at 44.
The Court notes that, in the Motion for Summary Judgment, the Defendant also presents a compelling legitimate nondiscriminatory reason for Plaintiff's reassignment and negative evaluation.
C. Plaintiff's Equal Pay Act Claim
The Equal Pay Act ("EPA") provides that an employer is prohibited from discriminating "between employees on the basis of sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." See 29 U.S.C. § 206(d)(1) (1994). To establish a prima facie case, a plaintiff must demonstrate that: (1) her employer 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 members of the opposite sex providing the basis for comparison. See Jones v. Flagship Int'l, 793 F.2d 714, 722-23 (5th Cir. 1986). The burden shifts to the employer once a plaintiff shows she was paid less than a male who was performing substantially the same job. See Plemer, 713 F.2d at 1136. The burdens of production and persuasion shift to the employer to demonstrate one of the four defenses specified under the EPA. See id. Those four defenses permit disparate wage payments if made pursuant to: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based upon any factor other than sex. See Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987).
In this case, Plaintiff fails to establish a prima facie case because she did not demonstrate that she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions. The summary judgment evidence shows that Plaintiff did not perform substantially similar work to that of the male auditors to which she compares herself The male auditors to which Plaintiff compares herself were not similarly situated because they had licenses she lacked and were performing all the duties of the higher grade position. Therefore, summary judgment is proper as to Plaintiff's EPA claim.
In the Motion for Summary Judgment, Defendant again notes that Plaintiff was not denied IAP because of her gender, but because she did not satisfy the qualifications for IAP.