Schroeder v. Sager Elec. CV-95-181-SD 04/24/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary-Ann Schroeder
v. Civil No. 95-181-SD
Sager Electrical Supply Company, Inc.
O R D E R
Plaintiff Mary-Ann Schroeder, a former salesperson for the
defendant, alleges that she was continuously denied promotions
and then constructively discharged in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. The
court previously granted defendant's motion for summary judgment
on plaintiff's discriminatory promotion claim, but, at the
defendant's reguest, did not decide plaintiff's constructive
discharge claim. See Order of October 28, 1996. The court also
gave plaintiff leave to amend her complaint to add a claim under
the Egual Pay Act, 29 U.S.C. § 206(d), but denied as futile her
motion insofar as she sought to add a state law claim for
wrongful discharge.
Before the court is defendant's second motion for summary
judgment, which presently attacks the two remaining counts in
plaintiff's amended complaint--the EPA claim and the Title VII claim for constructive discharge.1 Plaintiff objects to
defendant's motion.
Background
On April 30, 1984, plaintiff Schroeder was hired as a
salesperson by defendant Sager Electrical Supply Company, and was
promoted to the position of outside salesperson six months later.
In 1988, while Schroeder was still working as an outside
salesperson, a man allegedly less gualified than she and who had
children was hired for the job of sales manager, a position
senior to that of salesperson. She was allegedly told that she
did not get the job because she had recently married a man with
three children and "she would want to spend more time at home."
Complaint 5 11.
Schroeder was then passed over for promotion in 1990 and
again in 1994, when defendant hired men to fill a branch manager
position and a sales manager position, respectively. Schroeder
claims she was more gualified than both men. The complaint
further alleges that Schroeder was denied branch manager
positions "in locations across the country, although such
positions were offered to her male co-workers who were less
1The court herewith converts defendant's motion, entitled "Defendant's Second Motion to Dismiss and/or for Summary Judgment" into simply a motion for summary judgment. This decision should not represent an unfair surprise to either side, as both parties have relied on matters outside the pleadings.
2 qualified and less senior than [ s h e ] C o m p l a i n t 5 18.
After writing a letter to defendant in August of 1994, in
which she informed it of the discrimination, Schroeder filed a
Charge of Discrimination with the New Hampshire Human Rights
Commission and the Equal Employment Opportunity Commission (EEOC)
on October 7, 1994. The EEOC issued her a Notice of Right to Sue
on January 12, 1995; Schroeder then filed the action in this
court on April 6, 1995.
Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman
v. Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir. 1996) .
Since the purpose of summary judgment is issue finding, not issue
determination, the court's function at this stage "'is not [] to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.'" Stone &
Michaud Ins., Inc. v. Bank Five for Savinas, 785 F. Supp. 1065,
1068 (D.N.H. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986) ) .
When the non-moving party bears the burden of persuasion at
trial, to avoid summary judgment he must make a "showing
3 sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v. Catrett,, 477 U.S.
317, 322-23 (1986). It is not sufficient to "'rest upon mere
allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.
Ins. C o ., 6 F.3d 836, 841 (1st Cir. 1993) (guoting Anderson,
supra, 477 U.S. at 256), cert, denied, ___ U.S. ___, 114 S. C t .
1398 (1994). Rather, to establish a trial-worthy issue, there
must be enough competent evidence "to enable a finding favorable
to the non-moving party." Id. at 842 (citations omitted).
In determining whether summary judgment is appropriate, the
court construes the evidence and draws all justifiable inferences
in the non-moving party's favor. Anderson, supra, 477 U.S. at
255. Nevertheless, "[e]ven in cases where elusive concepts such
as motive or intent are at issue, summary judgment may be
appropriate if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990) (citations omitted).
2. Title VII: Constructive Discharge Claim
Under Title VII's prohibition against gender discrimination,
an employer cannot discharge an employee or otherwise
discriminate against such person "with respect to his
compensation, terms, conditions, or privileges of employment" on
4 the basis of sex. 42 U.S.C. § 2000e-2 (a) .
There being no direct evidence of defendant's discriminatory
animus regarding any of plaintiff's timely claims (as opposed to
the 1988 promotion pass-over), the parties' respective burdens of
production are governed by the three-step burden-shifting process
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973). Under said scheme, the employee must first establish
a prima facie case of discrimination.
To establish a prima facie case, Schroeder must show that
(1) she is a member of a class protected by Title VII, (2) her
job performance was sufficient to meet Sager's legitimate job
expectations, (3) she was actually or constructively discharged,
and (4) she was replaced with someone with roughly her
gualifications. C f . Greenberg v. Union Camp Corp., 48 F.3d 22,
26 (1st Cir. 1995) .
Although plaintiff retains at all times the burden of
persuasion, a prima facie showing will have the effect of
shifting the burden of production to the defendant to articulate
a legitimate nondiscriminatory reason for its employment action.
See Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995) (citing St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).
Once defendant has met its burden, the burden of production
shifts back to plaintiff, who must then prove that the employer's
justification is "a pretext for discrimination." Smith v. F.W.
5 Morse & C o ., 76 F.3d 413, 421 (1st Cir. 1996) . To satisfy its
burden, plaintiff must introduce evidence sufficient "for a
reasonable factfinder to infer that the employer's decision was
motivated by discriminatory animus." See Udo, supra, 54 F.3d at
13.
Schroeder does not claim she was actually discharged.
Instead, she claims that the conditions at her place of work
became so onerous that she was forced to resign. To establish a
claim of constructive discharge, the evidence must support a
finding that "'the new working conditions would have been so
difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign.'"
Greenberg v. Union Camp Corp., 48 F.3d 22, 27 (1st Cir. 1995)
(guoting Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st
Cir. 1986) (further guotation omitted)); Godfrey v. Perkin-Elmer
Corp., 794 F. Supp. 1179, 1186 (D.N.H. 1992). The applicable
legal standard is objective, reguiring an inguiry into the
"reasonable state of mind" of the person experiencing the new
conditions. Greenberg, supra, 48 F.3d at 27 (guotation omitted).
Therefore, a claim for constructive discharge cannot hinge on an
unreasonable reaction to one's work environment. Id.; Vega,
supra, 3 F.3d at 481.
A plaintiff can legitimately be said to feel compelled to
resign under a number of scenarios. A constructive discharge may
6 occur when an employee's resignation resulted from new conditions
that were particularly humiliating or demeaning; for example, by
continuously exposing him or her to ridicule in front of clients.
Greenberg, supra, 48 F.2d at 27 (citing Aviles-Martinez v.
Monroiq, 963 F.2d 2, 6 (1st Cir. 1992)). The court should also
consider whether plaintiff has been demoted or forced to suffer a
reduction in pay. See id. (citing Goss v. Exxon Office Svs. Co.,
747 F.2d 885, 888-89 (3d Cir. 1984)). In addition, direct or
circumstantial evidence of discriminatory animus can substantiate
the intolerable nature of one's working conditions. Id. at 28
(citing Acrev v. American Sheep Indus., 981 F.2d 1569, 1574-75
(10th Cir. 1992); Goss, supra, 747 F.2d at 888).
In support of her claim that she was constructively
discharged, plaintiff asserts that she was subjected to an
overall pattern of sexual discrimination which left her no choice
but to resign. In support thereof she states, and the court
agrees, that there is direct evidence that in 1988 a male was
promoted ahead of her for a discriminatory reason--her supervisor
assumed that since she had just been married she would want to
spend more time at home with her stepchildren. However, the
court has previously ruled that since this event occurred outside
the relevant limitations period, plaintiff would not be able to
recover for it under a theory of discriminatory promotion. See
Order of October 28, 1996. Plaintiff also submits the following
7 evidence to support that she was constructively discharged.
[A] less qualified male was promoted ahead of her in 1990 even though defendant was aware that plaintiff wanted the promotion and despite the fact that plaintiff had been receiving excellent performance reviews; a less qualified male was promoted ahead of her in 1994 even though defendant was aware that plaintiff wanted the promotion and despite the fact that plaintiff had been receiving excellent performance reviews; one of plaintiff's former customers was called a 'lesbian' by the owner of Sager in 1993 after the former customer asked that plaintiff be reinstated to her account (because the male promoted ahead of plaintiff in 1988 was inadequately servicing that account); plaintiff's appearance was criticized by a superior at Sager in 1994 while the appearance of male co-workers was not similarly criticized; and two of plaintiff's largest and most successful accounts were taken from her in 1994 while the large accounts of her male sales counterpart were not taken from him.
Plaintiff's Opposition Memo at 3.
Review of this record reveals that plaintiff has failed to
submit evidence which supports that she was constructively
discharged, as required to make out her prima facie case.
Certainly the isolated, ambiguous comments made by management
personnel, once in 1993 and once in 1994, standing alone, are not
sufficient to show constructive discharge. Moreover, although
plaintiff alleges that she was subjected to an "overall pattern"
of discrimination, the court has already ruled that she has
failed to produce sufficient evidence to support such contention.
See Order of October 29, 1996. Although Schroeder did have
direct evidence that she was discriminated against in 1988 on the basis of her sex, the court found that such evidence was too
attenuated from the events occurring in 1994 to have any
probative value.2
Thus the most substantial evidence to support a constructive
discharge is the evidence that two of plaintiff's "largest and
most successful accounts were taken from her in 1994," while the
accounts of a male employee occupying a similar position were not
taken from him. However, plaintiff submits no evidence as to
what degree this action affected her pay. From the court's review
of plaintiff's resignation letter, it appears that she even
received a raise in 1994. See Letter of Mary Ann Schroeder,
received August 30, 1994 (Exhibit B to plaintiff's opposition to
defendant's first motion for summary judgment, document 11). See
also Schroeder's employment reviews. Exhibit A to same document.
When the evidence is viewed in toto, the court cannot find
that a reasonable person in Schroeder's position would have felt
compelled to resign rather than seeking judicial relief while
remaining in her position. "'[A] limited blow to one's pride or
prestige does not provide reason enough to resign during whatever
2Perhaps most notably, the 1994 decision to not promote her was made by a different person than the one who made the decision to pass her over for promotion in 1988. See Order of October 29, 1996, at 18. Of course, there may be cases when evidence of discriminatory intent occurring outside the limitations period can bear on whether an employer subseguently discriminated against an individual. However, for reasons previously stated, this case is not one of them. period may be required to seek judicial relief.'" Serrano-Cruz
v. DEI Puerto Rico, ___ F.3d , 1997 WL 114118, at *4 (1st Cir.
Mar. 19, 1997) (quoting Alicea Rosado v. Garcia Santiago, 562
F .2d 114, 119-20 (1st Cir. 1977)).
The age discrimination case relied upon by plaintiff does
not persuade the court to find otherwise. In Calhoun v. Acme
Cleveland Corp., 798 F.2d 559, 563 (1st Cir. 1986), the court
found that evidence of plaintiff's employer's repeated inquiries
about plaintiff's resignation, the demotion of plaintiff, the
promotion of a younger person, and the threat of onerous working
hours if plaintiff did not resign could suffice to constitute
constructive discharge. In the case at bar, there is no evidence
of a demotion, much less a humiliating demotion where plaintiff's
position was given to a less qualified male, nor is there
evidence that Sager ever suggested that plaintiff resign or that
it threatened her with more onerous working conditions if she did
not resign.
The court does not make this decision lightly. In some
cases, evidence of discriminatory animus can suffice to show
constructive discharge. In her objection to defendant's motion
for summary judgment on the constructive discharge claim,
plaintiff argues that another employee at Sager was discriminated
against on the basis of her gender, and attaches an affidavit of
said employee, Kelly Smith. This employee alleges she was
10 discriminated against on the basis of being a single mother by
Ray Norton, the same man who allegedly participated in the
decision to promote a male candidate instead of the plaintiff in
1994 .
Had plaintiff produced this evidence in response to
defendant's original motion for summary judgment, which
challenged her discriminatory promotion claim, the court might
have decided the issue of discriminatory promotion differently.
However, plaintiff's opportunity on this issue has come and gone-
- plaintiff neither presented the evidence in her objection to
defendant's original motion for summary judgment, nor did she do
so when she moved for reconsideration. Plaintiff also does not
present a reason for the delay in introducing this evidence.
When Smith's affidavit is considered with this limitation; i.e.,
that it can have no bearing on plaintiff's discriminatory
promotion claim, the court cannot find that it gives significant
aid to plaintiff's constructive discharge claim.
2. The Equal Pay Act Claim
Under the Egual Pay Act, an employer is prohibited from
paying unegual wages on the basis of sex to employees performing
"egual work" on jobs reguiring "egual skill, effort, and
11 responsibility." See 29 U.S.C. § 206(d)(1).3 Plaintiff must
make out a prima facie case by showing "that the employer paid
different wages to an employee of the opposite sex for
substantially egual work." Byrd v. Ronayne, 61 F.3d 1026, 1033
(1st Cir. 1995) (citing Corning Glass Works v. Brennan, 417 U.S.
188, 195 (1974)). Once a prima facie showing has been made, the
employer must establish one of these affirmative defenses: "the
wage discrepancy resulted from (1) a seniority system, (11) a
merit system, (ill) a system measuring earnings by a guantity or
guality of production, or (iv) a differential based on a factor
other than sex." Id. ; 29 U.S.C. § 206(d) (1) .
Plaintiff worked at Sager's Salem, New Hampshire, office and
seeks to compare herself against employees who worked for Sager
both in Salem and at other locations. In order to do so, she
asserts that these offices make up a single "establishment"
within the meaning of the EPA. See, e.g., Mulhall v. Advance
329 U.S.C. § 206(d)(1) provides in pertinent part.
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for egual work on jobs the performance of which reguires egual skill, effort, and responsibility, and which are performed under similar working conditions . . . .
12 Security, Inc., 19 F.3d 586, 590 (11th Cir. 1994) (holding that
those employees against whom an EPA plaintiff compares herself
must work in the same establishment as she).
At the outset, the parties dispute who carries the burden
regarding the "within an establishment" reguirement. Defendant
argues that the burden of showing a single establishment falls on
the plaintiff as part of her prima facie case, while plaintiff
claims that defendant has raised the issue as an affirmative
defense.
The court finds and rules that the burden of showing a
single establishment is properly shouldered by the plaintiff when
she makes out her prima facie case. See, e.g., Mulhall, supra,
19 F.3d at 590; Foster v. Areata Assocs., 772 F.2d 1453, 1464-65
(9th Cir. 1985); c f . Marcoux v. State of Maine, 797 F.2d 1100,
1103 (1st Cir. 1986) (noting that EPA plaintiff "must show that
she was employed in the same establishment as her male
counterpart in order to state a claim"). It is well settled that
in making out her prima facie case a plaintiff must show that the
comparator employees performed "egual work." See Bvrd, supra, 61
F.3d at 1033. It follows that one way in which plaintiff must
show the eguality of the work performed is by showing the
singularity of the "establishment" where that work takes place.4
4This interpretation is also supported by the layout of the language of 29 U.S.C. § 206(d)(1). The "establishment" language
13 The parties also dispute whether plaintiff has satisfied her
burden of showing the existence of a single establishment within
the meaning of the EPA. The term "establishment" refers to "a
distinct physical place of business rather than to an entire
business or 'enterprise' which may include several separate
places of business. Accordingly, each physically separate place
of business is ordinarily considered a separate establishment."
29 C.F.R. § 1620.9(a). However, under certain unusual
circumstances, two or more distinct physical locations of a
business enterprise may be treated as a single establishment--
"[f]or example, a central administrative unit may hire all
employees, set wages, and assign the location of employment;
employees may freguently interchange work locations; and daily
duties may be virtually identical and performed under similar
working conditions." Id. at § 1620.9(b). A finding of a single
establishment is supportable by evidence of centralized control
and administration of disparate job sites. See Mulhall, supra,
19 F.3d at 591. Certain key factors are "centralized control of
job descriptions, salary administration, and job assignments or
functions." Id.
is present in the EPA's beginning portion, which also supplies the basis for plaintiff's prima facie case. See Byrd, supra, 61 F.3d at 1033. In contrast, the term "establishment" is not present in the latter portion, which sets forth the "exceptions" that serve as defendant's affirmative defenses.
14 Plaintiff claims that her position should be compared with
those employees occupying similar positions at Sager offices
located in Hingham, Massachusetts, and Wallingford, Connecticut.
She claims that the various Sager offices were operationally
controlled through the Hingham, Massachusetts, office, and that
she would report directly to the Hingham office when she was
working in Salem, New Hampshire. See Second Affidavit of Mary-
Ann Schroeder 5 8. She further states that she would receive
from the Hingham office daily and weekly figures on sales to her
customers, and that any change in sales procedures or forms were
generated by the Hingham office. Id. Plaintiff also provides
specific examples to support her assertions that "[s]ales
territories and customer accounts were interchangeable among
Sager's sales offices and Sager's salespersons," id. 5 3, and
that "Sager's inside and outside sales practices and procedures
were the same among Sager's various offices," id. 5 6.
In support of its position, defendant submits evidence
supporting the conclusion that "the ultimate hiring decisions fo
each [of its] offices were made by the superiors in that office.
Second Affidavit of Gabrielle Jenkins 5 8. However, said
affidavit also states, somewhat ambiguously, that "personnel
functions" were "coordinated" through Sager's headguarters in
Hingham, Massachusetts. Id.
The court's review of the evidence submitted leads it to conclude that a genuine issue of material fact exists as to
whether plaintiff has satisfied her burden with respect to the
"establishment" prong of her prima facie case. See generally
Mulhall, supra, 19 F.3d at 592 (holding summary judgment for
defendant would be improper if based solely on the
"establishment" prong of plaintiff's prima facie case because a
reasonable trier of fact could infer the existence of centralized
control as well as the functional interrelationship between
plaintiff and the employees against whom she sought to be
compared). Accordingly, defendant is not entitled to summary
judgment on this basis.
Invoking the fourth EPA affirmative defense, Sager next
argues that it is entitled to summary judgment because any wage
differentials between its offices in Massachusetts, Connecticut,
and New Hampshire are based on a factor "other than sex." See 29
U.S.C. § 206(d)(a); Byrd, supra, 61 F.3d at 1033. For the
purposes of this argument, defendant concedes that "its male
outside
sale representatives in its Massachusetts and Connecticut offices
were, on average, paid more than the Plaintiff during the
[r]elevant period." See Defendant's Memorandum at 23. However,
defendant argues that the "market realities" at these offices
reguired that higher salaries be paid.
In support of this argument, defendant asserts that the cost
16 of living in those regions is higher than in New Hampshire and
that each of those states has a broad-based income tax system,
while New Hampshire does not. However, defendant does not
indicate to what degree the lack of an income tax in New
Hampshire, or the purported lower cost of living, has affected
pay rates. In rebuttal, plaintiff has submitted an excerpt from
the United States Department of Commerce, Statistical Abstract of
the United States (116th ed. 1996), from which one can conclude
that the 1994 personal income per capita of New Hampshire was on
average $1,836 less than that of Massachusetts and $4,835 less
than that of Connecticut.5 In contrast, the disparities in
income between plaintiff and her male counterparts in
Massachusetts and Connecticut appear to be significantly greater
than that. For example, in 1994 plaintiff earned $11,294 less
than employee "D", who worked in Massachusetts, and such figure
does not include "D"'s $14, 000 bonus. See Jenkins Affidavit $[$[
4, 9. As another example, in 1994 plaintiff earned $7,179 less
than employee "J", who worked in the Connecticut office, leaving
$2,344 unaccounted for by "market realities." The court has also
reviewed an analysis performed by plaintiff's expert, Catherine
Newick, who estimates that between the years of 1990 and 1994 the
Specifically, the 1994 personal income per capita in New Hampshire was $22,532 as compared to $24,368 in Massachusetts and $27,367 in Connecticut.
17 average salary of female salespersons at Sager's New England
offices ranged between 20 percent and 27 percent below that of
male salespersons.
Accordingly, having reviewed the parties' submissions, the
court concludes that a genuine issue of material fact exists on
plaintiff's EPA claim, precluding judgment as a matter of law.
4. Intentional Wage Discrimination in Violation of Title VII
Much to the court's surprise, plaintiff argues in her
objection that she has asserted a Title VII intentional wage
discrimination claim. Plaintiff further argues that because
defendant has not moved for summary judgment on this claim, the
claim remains viable. The court surmises that defendant did not
seek summary judgment on such claim because it had no notice of
such claim, nor did the court. The claim was not mentioned when
plaintiff filed an objection to defendant's first motion for
summary judgment, nor did the plaintiff mention such claim by
name when it filed a motion to amend the complaint. Plaintiff
argues that such claim was embodied in certain allegations in the
complaint that also support her EPA claim. Having reviewed the
amended complaint, the court respectfully disagrees with
plaintiff that a claim for intentional wage discrimination in
violation of Title VII has been properly pled.
18 Conclusion
For the reasons stated above, the court grants defendant's
second motion for summary judgment as to plaintiff's Title VII/
constructive discharge claim and denies the motion as to
plaintiff's EPA claim. As a result, defendant is entitled to
summary judgment on plaintiff's Title VII claim in its entirety.
Finally, the court grants defendant's motion to continue the
discovery deadline (document 39). The deadline for defendant's
expert disclosure is now May 23, 1997; the deadline for the close
of discovery is now June 23, 1997. The trial date remains set
for the two-week period beginning July 22, 1997.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
April 24, 1997
cc: Thomas J. Pappas, Esg. Linda S. Johnson, Esg. James M. Hughes, Esg.