THOMAS D. SCHROEDER, District Judge.
Plaintiff Delores Long alleges age discrimination in employment under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
Viewed in the light most favorable to Long, the operative facts are as follows:
In 2011, 41-year-old Long was engaged as a part-time employee of Vanguard, Inc., a private social-services company, when she applied for employment as a full-time social worker with DSS, for whom she indirectly worked as a Vanguard employee. At Vanguard, Long was being paid $25 per hour, her hours fluctuated from four to twenty per week, and she received no benefits. (Doc. 22-1 at 35-36.)
While Long's application with DSS was pending, a supervisory social worker position became available and, at DSS's encouragement, Long applied for it. (Doc. 22-1 at 3-4.) Among those with whom Long interviewed were Tanya McDougal, director of the Child Protective Services Division, and Linda Alexander, Program Manager and supervisor of the position to be filled. McDougal was over 40, and Alexander was over 50. (
On September 5, 2011, Jaime Joyner, Forsyth County's Senior Human Resources Consultant, telephoned Long and offered her the position of Senior Social Worker Supervisor at a rate of $22.15 per hour, or $46,072 per year. (Doc. 22-1 at 105.) The "hiring range" for the position was $46,072 to $54,724, and DSS's "market reference point" (which new hires rarely received (Doc. 22-4 at 2, ¶ 3)) for the position was $57,602. (
Long expressed dissatisfaction with the starting salary and said she would decline the position because of it. Joyner told her that she could not reject the offer until she received DSS's formal written offer letter, so Long agreed to wait for the letter. In the meantime, Long drafted a letter to advocate for a higher starting salary, but she held onto the letter for almost three weeks before sending it. (Doc. 22-1 at 10-14.)
In the meantime, on September 16, 2011, McDougal telephoned Long to express her pleasure that Long would be joining DSS, but Long responded that she was unhappy with the starting salary. McDougal allegedly responded that DSS had a practice of "low-balling" starting salaries and told Long, "Oh, girl, don't worry about it. We'll take care of that on Monday when you show up." (
The next day, September 17, Long received her offer letter with the $22.15-an-hour starting salary and nevertheless reported for work on September 19 because, Long claims, McDougal had said the salary issue would be "taken care of." (
In October of 2012, while Long worked for DSS, she filed a formal grievance (Doc. 22-3 at 5-10) regarding her salary and various other issues of "disparate treatment and age discrimination within her work unit" (Doc. 4 at 3, ¶ 14), including complaints about her scheduling and the lack of control she was given over her subordinates (Doc. 22-1 at 128-32). In January of 2013, DSS Director Joe Raymond responded to Long's grievance, denying her relief. (
In the summer of 2013, Long's lawyer wrote to Raymond, demanding a salary increase. (Doc. 22-3 at 36-37.) Raymond responded that DSS would not adjust her salary. (
The EEOC issued a right-to-sue letter on March 31, 2015. (
Long alleges that DSS discriminated against her by "low-balling" her starting salary on the basis of age and because she was underemployed at Vanguard. (Doc. 22-1 at 91.) She also alleges that DSS subjected her to "numerous adverse employment actions (including, without limitation, assignment of disadvantageous shifts and removal from supervisory responsibility)," based on age. (Doc. 4 at 2, ¶ 21.) The complaint purports to incorporate the conduct she set forth in her formal grievance and EEOC charge. (
DSS timely removed the action (Doc. 1) and now moves for summary judgment on all of Long's claims (Doc. 21). The motions are fully briefed and ready for resolution.
Summary judgment will be granted when "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). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party."
Long alleges various claims of disparate treatment on the basis of age in violation of the ADEA. Defendants contend that all but two of her claims are barred by the ADEA's statute of limitations and that her only timely claims — for pay discrimination and constructive discharge — present no genuine dispute of material fact and are insufficient as a matter of law. Long contends that her claims are timely and that issues of fact preclude summary judgment.
The ADEA authorizes recovery under theories of disparate treatment,
In the absence of direct evidence of age discrimination,
Before reaching the merits of any ADEA claim, Defendants argue that, even assuming Long has alleged cognizable adverse employment actions, her claims are nevertheless time-barred. Long does not respond to the argument insofar as it relates to her federal claims.
In most cases, ADEA claimants must file a charge with the EEOC "within 180 days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(1)(A). That period is extended to 300 days if the State in which the allegedly unlawful practice took place is a "deferral State," that is, if the State has an anti-age discrimination law and authorizes a State authority to pursue age discrimination claims.
The Fourth Circuit has rejected the "discovery" rule and held instead that the ADEA's statute of limitations accrues when the allegedly unlawful act occurred.
Here, Long filed her charge with the EEOC on November 20, 2013 (Doc. 22-3 at 40),
Excepted from this exclusion, however, is her claim that DSS diminished her pay as a result of her age. (
Defendants argue that Long fails to demonstrate a genuine dispute of material fact whether DSS diminished her pay on the basis of her age.
To succeed on her claim of pay discrimination, Long "must prove that discrimination was `the but-for cause' of the adverse employment action."
Here, Long offers no direct evidence that she was paid less because of her age, and she fails to refute ample evidence on the record that her underemployment at Vanguard, coupled with her other experience and education, animated DSS's decision to pay her less. Long herself implied in a deposition that DSS paid her less because she was underemployed. (
Long also does not attempt to refute DSS's evidence of comparators' salaries. (
Long acknowledged in her September 2011 letter requesting "reconsideration of a higher salary" that the job posting specified that those without a graduate degree in social work (but with a college degree) should have a minimum of "five years of experience in rehabilitation counseling, pastoral counseling, group work, or community organization." (Doc. 22-1 at 105.)
Based on this record, no reasonable juror could conclude that age was the but-for cause of Long's allegedly diminished pay.
In connection with her discussion of her State age discrimination claims in her response to DSS's motion for summary judgment, Long argues cursorily that she was constructively discharged. (Doc. 23 at 3-4.) Long does not tie the argument to any federal claim. No constructive discharge claim is alleged in the complaint, nor has Long moved to amend the pleading. It is well-established that a party may not use a brief in support of or in opposition to summary judgment to amend a complaint.
Even if the court were to recognize the claim at this stage, however, it would fail on the merits. In the absence of direct evidence of age discrimination, Long must proceed under the
Here, Long fails to provide evidence of deliberateness or intolerability. She offers no evidence of the intent of any of DSS's actions and fails even to allege or argue that DSS wanted her to leave her job. Her only contention regarding the intolerability of her circumstances was that she "sought other employment" "in frustration" after DSS did not respond favorably to her grievances. (Doc. 23 at 4-5 (citing Doc. 23-1 at 46).) Moreover, the grievances
As such, no reasonable juror could find that Long satisfies either part of the first element of a constructive discharge claim, if it could be construed under the complaint.
Having found that the only claim over which this court has original jurisdiction will be dismissed, the court declines to exercise supplemental jurisdiction over Long's State law claims.
For the reasons stated, the court finds that Long's pay discrimination claim and putative constructive discharge claim do not present a genuine dispute of material fact and fail as a matter of law. The court finds further that Long's other ADEA claims are barred by the ADEA's statute of limitations, 29 U.S.C. § 626(d)(1).
IT IS THEREFORE ORDERED that the Defendants' motion for summary judgment (Doc. 21) is GRANTED as to Long's ADEA claims, which are DISMISSED WITH PREJUDICE, and DENIED WITHOUT PREJUDICE as to the remaining State law claims.
Having dismissed all claims over which it has original jurisdiction, the court declines to exercise supplemental jurisdiction over Long's State law claims pursuant to 28 U.S.C. § 1367(c)(3), and they are REMANDED to the General Court of Justice, Superior Court Division, Forsyth County, North Carolina, for further consideration.
Long's grievance also itemizes instances of alleged age discrimination that she argues can be construed to constitute adverse employment actions. She expounded on these in her deposition. The principal ones are as follows:
Long cites an October 11, 2012 DSS announcement for a "new AHU Social Worker position" that she contends is comparable to her position (although it is a different position) but had lesser expectations. (
Long complains at length about her work schedule while she supervised the AHU. (Doc. 22-1 at 53-54.) In this position, Long had to work a nighttime shift and occasionally be available for meetings and court appearances during the day. (Doc. 22-2 at 2-12.) She claims that the current AHU supervisor is treated better than she was because, among other things, the new supervisor does not have to work late hours "because she has small children," has received a more favorable work schedule, and "is given authority to enforce policy and procedure; make her own rules; and come and go as she pleases." (Doc. 22-3 at 8.)
Long claims she was told she could take on more responsibility than her younger coworkers "because of [her] maturity and experience." (
Long claims that two newly hired supervisors, Melissa Bell and Teressa Brown, were allowed to build their own teams "slowly," whereas Long "walked into a team" that was already assembled. (Doc. 22-1 at 69.)
Long claims that she was made to complete another supervisor's work. (
Long claims that Theresa Boucher, a DSS employee, yelled at her and cursed at her in the course of handling a case of potential child abuse. Long further claims that Boucher complained to DSS's director about the incident. (
Long complains at great length about her direct supervisor, Linda Alexander. Among other things, Long claims Alexander gossiped about her and exerted more direct control over Long than she thought necessary. (
It is unnecessary to decide which, if any, of these occasions constitutes an adverse employment action because, as addressed