WILLIAM D. QUARLES, JR., District Judge.
Cheryl F. Cohens
Cohens, an African-American woman, was hired as an Administrative Officer II at the DHR on November 4, 1993. Compl. ¶ 6. On November 30, 1994, she was promoted to Administrative Officer III, Grade 15, Step 11. Id.; see McMahan Decl. at 24 ¶ 10.
Three male trainers and another female trainer worked in HRDT. See McMahan Decl. at 22-24 ¶¶ 5-8; ECF No. 28 at 2. The other members of HRDT were Doctor Marian Davis-Foster, an African-American woman; Osceola Edmondson, an African-American man; Ron Forbes, a white man; and Barry Simon, a white man. McMahan Decl. at 22-24 ¶¶ 5-8.
In March 2009, HRDT employees received an email stating each person's pay. Compl. ¶ 8. Cohens learned that she was being paid between $25,000 and $30,000 less per year than the white or male trainers. Id.
Sometime before July 2009, Cohens "broke down in tears in Valenti's office" and told him that the work environment was "difficult" for her. Compl. ¶ 11; see ECF No. 10-1 at 4 n.6. Cohens's coworkers knew that she was terrified of mice, and "[s]omeone [had] put mousetraps in her office." Compl. ¶ 11. Cohens's training schedule had also been reduced. Id. Cohens told Valenti that she "needed to take a leave of absence because of her mental state regarding work depression." Id. Valenti allegedly told Cohens "she had to be a good girl" to get her leave approved, and "someone in [m]anagement was trying to terminate her." Id.
On July 11, 2009, Cohens submitted a letter of resignation, effective September 29, 2009. Compl. ¶ 12; see ECF No. 27 at 21. On December 15, 2009, Cohens submitted an intake questionnaire to the U.S. Equal Employment Opportunity Commission (the "EEOC"), alleging race and sex discrimination and retaliation. ECF No. 15-2 at 3. On March 2, 2010, Cohens filed a charge with the Maryland Commission on Human Relations (the "MCHR") and the EEOC, alleging race and sex discrimination and unequal pay. ECF No. 27 at 26 [hereinafter, "Discrimination Charge"]. On August 12, 2011, Cohens received a right-to-sue letter. Compl. ¶ 2.
On September 30, 2011, Cohens sued in the Circuit Court for Baltimore City, Maryland, alleging race and gender discrimination and retaliation, in violation of the EPA (Count One), the MEPA (Count Two), Title VII (Count Three), and Title 20 (Count Four). ECF No. 2. On November 28, 2011, the DHR removed the lawsuit to this Court. ECF No. 1.
On August 16, 2012, Cohens moved for summary judgment on her equal pay claims. ECF No. 23; see ECF No. 23-1 at 3; see also infra note 26. On September 6, 2012, the DHR opposed Cohens's motion and cross moved for summary judgment. ECF No. 27. On September 10, 2012, Cohens opposed the DHR's cross motion and replied in support of her motion for summary judgment. ECF No. 28. On September 17, 2012, the DHR replied. ECF No. 29. On September 25, 2012, Cohens filed a surreply. ECF No. 35.
On September 20, 2012, Cohens moved to amend the memorandum in support of her motion for summary judgment. ECF No. 31. On September 27, 2012, the DHR opposed Cohens's motion to amend. ECF No. 37. On October 4, 2012, Cohens replied. ECF No. 40.
Motions for reconsideration of an interlocutory order are governed by Fed. R.Civ.P. 54(b), under which "any order ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b).
Although Rule 60(b) applies only to final judgments, a court may consider the reasons in that rule when deciding whether to grant relief under Rule 54(b).
The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
The Court must "view the evidence in the light most favorable to ... the nonmovant and draw all reasonable inferences in [its] favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002), but the Court must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.2003) (citation and internal quotation marks omitted).
When cross motions for summary judgment are filed, "each motion must be considered individually, and the facts relevant to each must be reviewed in the light most favorable to the nonmovant." Mellen, 327 F.3d at 363 (citing Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003)).
Cohens asks the Court to reconsider dismissal of her retaliation claim, on the grounds that "new evidence" shows the claim was administratively exhausted. ECF No. 15. Specifically, Cohens argues that her December 15, 2009 EEOC intake questionnaire, which was not previously submitted to the Court, "includes very detailed information about the parties and claims," exhausting the administrative process as to her retaliation claim. ECF No. 15-1 at 1-2. The DHR counters that an intake questionnaire "does not serve as an EEOC charge." ECF No. 18 at 1; ECF No. 18-1 at 1.
A court's discretion to review an interlocutory order is "not subject to the strict standards applicable to motions for reconsideration of a final judgment,"
A Title VII plaintiff must first "exhaust her administrative remedies by bringing a charge with the EEOC." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir.2000). "The scope of the plaintiff's right to file a federal lawsuit is determined by the charge's contents." Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.2009). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Id. (internal quotation marks omitted). "[A] failure by the plaintiff to exhaust administrative remedies ... deprives the federal courts of subject matter jurisdiction over the claim." Id. Because Cohens neither checked the "retaliation" box on her EEOC charge nor alleged retaliation in the charge's factual summary, this Court concluded that she failed to exhaust her administrative remedies as to that claim. ECF No. 11 at 9; see Discrimination Charge.
Cohens asserts that reconsideration is warranted in light of her newly submitted intake questionnaire, which did check "retaliation" as a basis for her employment discrimination claim. ECF No. 15-1 at 1; see ECF No. 15-2 at 3. Because Cohens has offered new evidence and arguments, this Court will consider her motion on the merits. See McLaurin, 666 F.Supp.2d at 596; Reyazuddin v. Montgomery County, Md, 2012 WL 642838, at *3 (D.Md. Feb. 27, 2012).
"A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit." Mayers v. Wash. Adventist Hosp., 131 F.Supp.2d 743, 747 (D.Md. 2001), aff'd, 22 Fed.Appx. 158 (4th Cir. 2001) (per curiam).
Id. at *6.
The district court adopted the magistrate judge's report. Middleton, 2010 WL 3167360, at *7. Despite that the plaintiff had later offered evidence that the intake questionnaire was filed with the EEOC, the district court explained that the questionnaire could not amend the later-filed EEOC charge, because the two documents "serve different purposes." Id. at *6 (internal quotation marks omitted). Specifically, whereas an intake questionnaire "facilitates pre-charge filing counseling" and "is not shared with the employer during the pendency of the EEOC investigation," the EEOC charge "serves to define" the scope of the EEOC investigation and to notify the defendant of the charges against it. Id. (internal quotation marks omitted).
Here, as in Middleton — and as this Court previously explained in its opinion dismissing Cohens's retaliation claim — Cohens's EEOC charge did not set forth any retaliatory conduct by the DHR, nor did it assert a retaliation claim in the section provided. See Discrimination Charge; ECF No. 11 at 10. Further, that Cohens's intake questionnaire circled "retaliation" as a basis for discrimination does not restore this Court's subject matter jurisdiction, for "[t]o treat Intake Questionnaires willy-nilly as charges would be to dispense with the requirement of notification of the prospective defendant." Park v. Howard Univ., 71 F.3d 904, 909 (D.C.Cir.1995) (internal quotation marks omitted); see also Middleton, 2010 WL 3167360, at *6-7. The Court will affirm its order dismissing Cohens's retaliation claim.
The parties have cross moved for summary judgment on Cohens's EPA and MEPA claims (Counts One and Two).
29 U.S.C. § 206(d)(1). "[C]ourts have applied the same analysis in reviewing MEPA and EPA claims," because "[t]he MEPA essentially mirrors ... the EPA."
Apparently anticipating a "merit system" defense under the EPA,
As a general rule, an EPA action must be brought within two years after the cause of action accrues. 29 U.S.C. § 255(a).
Here, there is a genuine dispute of material fact about whether Cohens's EPA claim is timely. Cohens's resignation was effective on September 29, 2009. Compl. ¶ 12. In her opposition and reply, Cohens asserts that she "was not paid beyond [that] date." ECF No. 28 at 4.
Because Cohens has not shown that the DHR's conduct was willful, and the DHR has offered evidence to support its argument that it acted in good faith, Cohens's EPA claim is subject to the two-year statute of limitations. There is insufficient evidence to determine — and thus a dispute of material fact about — whether Cohens was issued a discriminatory paycheck between her resignation date and the date she filed suit. Summary judgment for Cohens is precluded on this ground.
Even if Cohens's EPA claim were timely brought, Cohens has failed to establish that she is entitled to judgment as a matter of law on the merits of her EPA and MEPA claims.
Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 567 (D.Md.1992) (internal citations and quotation marks omitted).
If the plaintiff succeeds in establishing her prima facie case, the burden shifts to the employer to show by a preponderance of the evidence that the salary differential was justified by one of four statutorily prescribed affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system pegging earnings to quantity or quality of production; or (4) any factor other than gender. 29 U.S.C. § 206(d)(1)(i)-(iv); Diamond v. T. Rowe Price Assocs., Inc., 852 F.Supp. 372, 389 (D.Md.1994). If the employer carries its burden, the plaintiff's claim must fail as a matter of law unless she can rebut the employer's evidence. Galarraga, 1996 WL 376408, at *3 (citing Strag, 55 F.3d at 948). If the employer does not carry its burden, it is liable for sex discrimination in pay. Strag, 55 F.3d at 948; Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir.1994).
Although Cohens has alleged that she was paid less than her male colleagues, her motion does not expressly address the other elements of her prima facie case. See generally ECF No. 23-1. The DHR argues that Cohens has failed to establish a prima facie case because she has not shown that her job required the same "skill, effort, and responsibility" as Edmondson's, Forbes's, and Simon's. ECF No. 27 at 8-14; see Gustin, 63 Fed. Appx. at 698; see also Galarraga, 1996 WL 376408, at *3. In her opposition and reply, Cohens counters that the DHR "has not produced documents supporting the male Trainers' actual work performance, activities[,] and schedules from 2002-2005." ECF No. 28 at 6, Cohens further asserts that "[e]ven if the [DHR] could prove that the male Trainers were assigned more `complex' duties ... the fact that [Cohens] was qualified to work in the same classification as [her male colleagues]
According to Edmondson's MS-22 Position Description, Edmondson was an Administrator V, with a working title of "Deputy Director, HRDT-Training Unit." ECF No. 27 at 37. In that capacity, Edmondson was tasked with managing the Training Unit in the absence of the Director, and serving as the Primary Instructor, Management Consultant, Vendor Contracting Liaison, and Evaluator of in-house staff training. Id. at 38. Thirty percent of his time was assigned to planning, organizing, training, supporting, and evaluating staff in the "design, development[,] and delivery" of "all DHR training packages." Id. Forty percent of his time was assigned to establishing and maintaining "effective working relationships" with management. Id. Edmondson's position also required supervision of other employees. Id. at 42.
According to Forbes's MS-22 Position Description, Forbes was a Program Manager II, with a working title of "Leadership Development Program Admin., HRDT-Training Unit." ECF No. 27 at 45. In that capacity, Forbes was expected to plan and implement the DHR's "Leadership Development Program," and to serve as the Primary Contact Instructor, Management Consultant, Vendor Contracting Liaison, and Evaluator of training for the Leadership Development Program. Id. at 46. Like Edmondson, 40% of Forties's time was assigned to planning the design and development of DHR training packages, and 30% was assigned to maintaining relationships with management. Id. Forbes's position did not require him to supervise other employees. Id. at 50.
According to Simon's MS-22 Position Description, Simon was an Administrator II, with a working title of "E-Learning Coordinator." ECF No. 27 at 53. In that capacity, Simon was tasked with providing "e-learning oversight and administration to all DHR staff." Id. at 54. Sixty-five percent of Simon's time was assigned to web master duties; 20% was assigned to managing and administering the e-learning program; 10% was assigned to using computer languages and "microcomputer command language tools"; and 5% was reserved for performing "other related duties," such as participating in HRDT's plan for Maryland's "E-gov" initiatives. Id. at 55. Simon's position did not require him to supervise other employees. Id. at 58.
This Court will assume, for this analysis, that Cohens's and her male colleagues' respective positions shared a "common core of tasks." Hassman, 790 F.Supp. at 567. The question, then, is whether her male colleagues' additional tasks "require[d] greater skill or responsibility": skill being a function of experience, and responsibility measuring, among other things, degree of accountability. Id. Viewing the facts in the light most favorable to the DHR, Mellen, 327 F.3d at 363, this Court concludes that there is, at the very least, a genuine dispute of material fact about this issue. As Deputy Director, Edmondson was expected to manage the unit in the Director's absence. ECF No. 27 at 38. Forbes's central role was to plan and implement the DHR's Leadership Development Program. Id. at 46. Simon was assigned significant computer-based responsibilities. Id. at 54. Cohens was not assigned these tasks. See, e.g., Cohens Dep. at 61 (35:2-10; 36:6-9). And, unlike the other HRDT members, Cohens did not have a college degree. See McMahan Decl. at 23-24 ¶¶ 6-8; Cohens Dep. at 61 (31:14-17, 32:6-9).
Because there is a genuine dispute about the timeliness of Cohens's EPA claim, and because Cohens has failed to establish a prima facie violation of the EPA or the MEPA, her motion for summary judgment will be denied.
The DHR seeks summary judgment on the grounds that Cohens's EPA claim is time-barred; Cohens "cannot" establish a prima facie violation of the EPA or MEPA; and, even if Cohens had established a prima facie case, it is exempt from the EPA under the "merit system" and "any other factor other than sex" exceptions. ECF No. 27 at 1, 7, 14-17; see id. at 9 n. 4. Cohens objects that her claim is timely and argues that the DHR "continues to use education and skill level as a factor for the pay disparity," when in fact these reasons are "a pretext to the [DHR's] discriminatory behavior." ECF No. 28 at 3. For purposes of the DHR's motion, this Court will assume that Cohens's EPA claim is timely and that Cohens has established a prima facie case.
As discussed above, assuming that Cohens has established a prima facie violation of the EPA and MEPA, the burden shifts to the DHR to show by a preponderance of the evidence that the salary differential was justified by: (1) a seniority system; (2) a merit system; (3) a system pegging earnings to quantity or quality of production; or (4) any factor other than gender. 29 U.S.C. § 206(d)(1)(i)-(iv); Diamond, 852 F.Supp. at 389. If the DHR carries this burden, Cohens's claim must fail as a matter of law unless she can rebut the DHR's evidence. Galarraga, 1996 WL 376408, at *3 (citing Strag, 55 F.3d at 948).
The DHR principally argues that Maryland's "complex personnel management system" "clearly" constitutes a "merit system" exempt from the EPA. ECF No. 27 at 15. The Fourth Circuit has defined a "merit system" as "an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria." EEOC v. Aetna Ins. Co., 616 F.2d 719, 725 (4th Cir.1980).
By statute, Maryland's Secretary of Budget and Management (the "Secretary") oversees the SPMS. Md. Code Ann., State Pers. & Pens. § 6-101. The SPMS's stated purpose is to provide a system of employment for employees under the Secretary's authority, and it covers all positions in the state government's executive branch. Id. §§ 6-102, 6-302(a). Among other things, the SPMS (1) "establishes categories of service for employees based on the general nature of the employee's duties or method of appointment"; (2) "groups employees into classes based on specific duties that employees perform"; (3) "provides a system of pay for employees"; and (4) "provides for a system of merit employment in the skilled service
Cohens appears to concede that the SPMS is a merit system, but argues that the DHR abused that system to discriminate against her. See, e.g., ECF No. 28 at 7-9. In support, Cohens asserts that the DHR "intentionally and knowingly violated regulations" by failing to perform annual evaluations of its employees — allegedly so that "it would `appear' that the male trainers were continuing to perform the same duties of the previous position and retain their salaries." Id. at 5. According to Cohens, discovery "revealed" that the MS-22 Position Description form "was not applied properly for one single trainer in over [five] years." Id. The DHR counters that, under the SPMS, MS-22 Position Descriptions need only be modified if "needed." See Md. Code Ann., State Pers. & Pens. § 7-503(b)(3)(ii).
Under COMAR § 17.04.01.04(A)(1), an appointing authority, head of a principal unit, and management have the exclusive authority to reassign employees under the appointing authority's jurisdiction. According to the Salary Guidelines for the Standard Pay Plan,
Assuming that Cohens's EPA claim is not time-barred, and that she has established a prima facie case under the EPA and MEPA, she has failed to rebut the DHR's affirmative defense under those statutes. The DHR's motion for summary judgment will be granted.
For the reasons stated above, Cohens's motion for reconsideration will be granted in part and denied in part; Cohens's motion to amend will be granted; Cohens's motion for summary judgment will be denied; and the DHR's cross motion for summary judgment will be granted.
