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,

(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.,

, 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,

(D.N.H. 1992) (quoting Anderson v. Liberty Lobby, Inc.,

(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,,

(1986). It is not sufficient to "'rest upon mere

allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.

Ins. C o .,

(1st Cir. 1993) (guoting

), 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.

. 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.,

(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,

, 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.,

(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,

(1st Cir. 1995) (citing St.

Mary's Honor Ctr. v. Hicks,

(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 .,

(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

.

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.,

(1st Cir. 1995)

(guoting Calhoun v. Acme Cleveland Corp.,

(1st

Cir. 1986) (further guotation omitted)); Godfrey v. Perkin-Elmer

Corp.,

(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.

(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.

48 F.2d at 27 (citing Aviles-Martinez v.

Monroiq,

(1st Cir. 1992)). The court should also

consider whether plaintiff has been demoted or forced to suffer a

reduction in pay. See

(citing Goss v. Exxon Office Svs. Co.,

(3d Cir. 1984)). In addition, direct or

circumstantial evidence of discriminatory animus can substantiate

the intolerable nature of one's working conditions.

at 28

(citing Acrev v. American Sheep Indus.,

(10th Cir. 1992); Goss, supra,

).

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 ,

, 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.,

(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

(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,

(1st Cir. 1995) (citing Corning Glass Works v. Brennan,

(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."

;

(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

(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.,

(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.,

; Foster v. Areata Assocs.,

(9th Cir. 1985); c f . Marcoux v. State of Maine,

(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,

. 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

(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."

(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."

at § 1620.9(b). A finding of a single

establishment is supportable by evidence of centralized control

and administration of disparate job sites. See

. Certain key factors are "centralized control of

job descriptions, salary administration, and job assignments or

functions."

is present in the EPA's beginning portion, which also supplies the basis for plaintiff's prima facie case. See

. 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.

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,"

5 3, and

that "Sager's inside and outside sales practices and procedures

were the same among Sager's various offices,"

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.

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

(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

(d)(a);

. 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.

19