ANTHONY J. TRENGA, District Judge.
Defendant Booz Allen Hamilton, Inc. ("Booz Allen" or Defendant) has moved for summary judgment in this age and sex discrimination case ("the Motion). The dispositive issue is whether Plaintiff Carla Calobrisi ("Calobrisi" or Plaintiff) has presented evidence sufficient to allow a reasonable fact finder to conclude that Defendant's restructuring of its Law Department, under which Plaintiff was demoted from Principal to Senior Associate, was a pretext for age and sex discrimination leveled against her. Having reviewed the summary judgment record, the Court concludes that the evidence is insufficient, as a matter of law, for a reasonable juror to find that Defendant's restructuring of its Law Department was a pretext for discriminating against the Plaintiff; and Plaintiff has therefore failed as a matter of law to rebut Defendant's legitimate nondiscriminatory explanation for her treatment. For these reasons and those stated more fully below, the Court finds that there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Defendant's Motion for Summary Judgment [Doc. No. 255] is therefore GRANTED.
Plaintiff was hired on April 10, 2000 as a Senior Associate and Associate General Counsel in Booz Allen's Legal Department (LD). At the time she was hired, she had practiced law for approximately fourteen years. In 2003, Plaintiff was promoted to Principal. In 2008, Booz Allen spun off its commercial and international business as part of a transaction with the Carlyle Group. That transaction included a non-competition agreement under which Booz Allen agreed not to compete in the commercial and international areas until July, 2011. In 2009, following the transaction with the Carlyle Group, Booz Allen consolidated under Plaintiff the limited legal work that remained in the commercial and international business practices with the legal work in the real estate area she had been doing since joining Booz Allen. As before this consolidation, Plaintiff did not supervise other lawyers.
During the three years covered by the non-compete agreement, Deputy General Counsel William Meyers and then-General Counsel Appleby assured Plaintiff that when the non-compete period ended on July 30, 2011, her work in the commercial and international practices would expand. On one occasion, Meyers told Plaintiff that it was going to be her "time to shine" because her practice was about to significantly expand due to the expiration of the non-compete agreement.
In January, 2010, Appleby announced his retirement, effective July 2011, and Robert Osborne was selected to become General Counsel. Unbeknownst to Plaintiff, by the end of 2010, the LD "leadership team," including Appleby, Meyers, incoming General Counsel Robert Osborne, and Deputy General Counsel Douglas Manya, was contemplating a restructuring of the LD in anticipation of Booz Allen's reentry into the commercial and international markets in July 2011. On January 20, 2011, Messers Appleby, Meyers, Osborne, and Manya met and finalized that restructuring. Under the restructuring, as adopted and insofar relevant to this litigation, the real estate, commercial and international practices would no longer be consolidated under one team leader but rather would be split into three separate teams with a lawyer at the Senior Associate level leading each team, with all team leaders reporting to the Deputy General Counsels. Plaintiff, then age 55, was selected to be the team leader for global real estate work, with her status reduced effective April, 2011, from Principal to Senior Associate; and while her salary would not be reduced and she would remain eligible for a Principal-level bonus in 2011, she would thereafter be limited to the benefits provided at the Senior Associate level. Debra Storms, age 46, was selected to be team leader for commercial work and Karen Tinsky, age 36, for international work. At the time, both Storms and Tinsky were Senior Associates reporting to Deputy General Counsels Meyers and Manya and they retained their Senior Associate status. On January 26, 2011, Appleby, Osborne, and Meyers informed Plaintiff about the LD restructuring and her new position and status.
On March 24, 2011, Plaintiff contacted Chief Personnel Officer Betty Thompson to discuss her concerns with her demotion, and specifically, whether she was demoted because of her gender or age. Plaintiff also raised whether she would be able to continue serving on the diverse women's mentoring circle now that she would no longer be a Principal. Plaintiff did not ask Thompson to conduct an investigation into her demotion, but had the expectation that Thompson would initiate one on her own. Not long after raising her concerns with Thompson, Meyers and HR Manager Caroline Wilkie requested that Plaintiff sign a memorandum stating "I acknowledge that I have read this memo and approve and voluntarily accept the terms and conditions of the aforementioned transfer [from your current position as a Principal to the position of Senior Associate effective April 1, 2011]."
At Plaintiff's annual assessment in May 2011, Plaintiff's peer assessor, Jennifer Gleich, together with Meyers, meet with the Plaintiff to present to her the results of her annual performance review and to discuss what Plaintiff should focus on for upcoming year. The conversation turned to Plaintiff's concern that her demotion was the result of gender and age discrimination. At that meeting, as Plaintiff remembers it, Meyers told Plaintiff that if she could not "get over it," (meaning, the demotion) then she could leave the firm and he discussed a package to transition her out of the firm. Meyers' message to Plaintiff was consistent with emails that Meyers and Gleich exchanged before the meeting regarding the message to be delivered to Plaintiff.
In June 2011, Plaintiff announced her intention to retire and resign from the firm, effective October 31, 2011.
On May 31, 2013, Plaintiff filed her Complaint which asserted the following causes of action: (1) Sex Discrimination in violation of the District of Columbia Human Rights Act, D.C. Code §§ 2-1402.11 et seq. (DC HRA); (2) Sex Discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1); (3) Discrimination on the Basis of Age in violation of the DC HRA; (4) Discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) (ADEA); (5) Retaliation in violation of the DC HRA; (6) Retaliation in violation of Title VII of the Civil Rights Act; and (7) Retaliation in violation of the ADEA.
Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996). The party seeking summary judgment has the initial burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The facts shall be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir.2007). To defeat a properly supported motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 248. Whether a fact is considered "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
Title VII makes it unlawful for an employer to discriminate against an individual on the basis of sex. See 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits an employer from taking an adverse employment action against any employee "because he has opposed any practice made an unlawful employment practice under this subchapter." 42 U.S.C. § 2000e-3(a). Likewise, the ADEA prohibits employers from terminating an employee who is at least 40 years of age "because of the person's age. 29 U.S.C. §§ 623(a)(1), 631(a).
In order to survive summary judgment, plaintiff must first establish a prima facie case of unlawful discrimination. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000); Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In order to establish a prima facie case of discriminatory adverse employment action under Title VII or the ADEA, a plaintiff must either produce "direct evidence" of discrimination
Defendant concedes that Plaintiff has established a prima facie case under the McDonnell Douglas framework as to both her age and sex discrimination claims; and Plaintiff concedes that Defendant has articulated legitimate, non-discriminatory business reasons for its treatment of her, specifically, its restructuring of the Law Department as part of its larger strategy to re-enter the commercial and international markets following the expiration of the non-compete period and in anticipation of the increased volume of legal work expected in those practice areas. Plaintiff contends, however, that the relied upon restructuring was not the real reason for her treatment, but merely a pretext for sex and age discrimination imposed on her. In support of this claim, she points to two categories of evidence, either of which she claims is sufficient to raise a reasonable inference of pretext: (1) Defendant's shifting and inconsistent explanations for why she was demoted; and (2) circumstantial evidence that give rise to an inference of discriminatory intent, including statements reflecting discriminatory animus on the part of Booz Allen management and supervisors and, more generally, Defendant's "pattern and practice" and "corporate culture" of discrimination against older women. The Court has considered in detail these categories of proffered evidence and when considered either separately or in combination, must conclude that they are insufficient to raise a reasonable inference that Defendant's articulated reasons for its treatment of the Plaintiff were not its real reasons but rather a pretext for discriminating against Plaintiff on the basis of sex or age.
An employer's inconsistent explanations for its employment decisions are probative of pretext. See Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 647 (4th Cir. 2002) ("The fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pre-text.") (quoting EEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4
Plaintiff claims that Defendant's explanation of its treatment of her has shifted from one that is not based on her performance to one that is. In support of this position, she first points to Defendant's statements made at the time she was advised of her demotion that specifically disclaimed that its restructuring decisions were based on her performance, but rather the expectation of expanded growth in international and commercial areas, which would make handling all three practice areas "too much" for one attorney."
Defendant has not engaged in the kind of shifting, inconsistent explanations that permit a reasonable inference of pretext. Defendant has never wavered from its central justification for its treatment of Plaintiff, viz., that as a result of its decision to re-enter the commercial and international areas following the expiration of the non-competition period, the Law Department was restructured to support that overall corporate strategy. There is no evidence that the reasons given were not true or not among the core, operative considerations at the time the relevant decisions were made. The Defendant's positions that Plaintiff now points to are inseparable from its overall justification, part and parcel of its articulated reasons and not inconsistent with them. In that regard, the restructuring involved creating three separate practice areas and designating the position of team leader for each as a Senior Associates position. It was therefore not a shift in Defendant's explanation when it claims that Plaintiff was demoted in order to bring her in line with the designated level for the team leader positions. Likewise as to Defendant's criticisms of Plaintiff's performance and experience that emerged during discovery.
Plaintiff points to what she considers evidence that her demotion occurred "under circumstances giving rise to an inference of unlawful discrimination." Doc. No. 261 at 18-19.
Plaintiff contends Defendant's decision to demote her and dis-aggregate the three practice areas lacked "any logical explanation." In support of that contention, she claims that she was better qualified to lead the commercial and international practice areas than either Storms or Tinsky, that she could have competently led all three areas if only Defendant had assigned additional attorneys to work under her supervision, as it had done for Meyers and Manya, and that an inference of pretext and discrimination can be derived from her not being selected to lead all three practice area despite her superior qualifications, as compared to Storms and Tinsky. As Plaintiff summarizes the evidence in this regard, Storms and Tinsky, women ages 9 to 19 years younger than she, were less experienced than Plaintiff in international and commercial work: Storms' capabilities centered primarily on Intellectual Property rather than commercial work, and Tinsky did not have sufficient experience in the international market. In support of her contention that she had developed significant experience in commercial and international matters, she points to her tenure as team lead for those practice areas since 2009, Appleby's favorable assessment of her talents relative to those selected, Meyers' statement to her in December 2010 that Booz Allen's re-entry into the international area would be her "time to shine" and her selection that same month to be the point of contact for International on the X-team.
In certain circumstances, pretext may be inferred from a showing that a plaintiff in a protected class was the better qualified candidate when compared to the person selected from outside the protected class. See, e.g., Dennis, supra, 290 F.3d at 656 (to show pretext, a plaintiff "must establish that she was the better qualified candidate for the position sought to meet her burden of proving that the explanation is pretextual and that she was the victim of intentional discrimination.") (quoting Evans v. Techs. App. & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996)). But "[i]n analyzing whether the plaintiff has met her burden of proving that she was a better qualified candidate, it is the perception of the decision maker which is relevant." Id In that regard, a company's hiring decision based on an evaluation of the qualifications of competing candidates is entitled to substantial deference. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir. 2005) ("We do not sit as a `super-personnel department weighing the prudence of employment decisions' made by the defendants.") (quoting DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998); see also Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006) (holding that "when a plaintiff asserts job qualifications that are similar or only slightly superior to those of the person eventually selected, the promotion decision remains vested in the sound business judgment of the employer.").
Here, Defendant's explanation of its selection decisions to fill the positions created under its restructuring of the Law Department is entitled to substantial weight and deference. It was the result of an extended and detailed assessment of the skills and experience of the various candidates by multiple individuals, over a period of many months leading up to the implementation of the restructuring. See, e.g., Pl.'s Exs. 16, 17, 18, and 19. There is no evidence that this review was based on any unlawful considerations or that Osborne, whom Plaintiff claims made the decision to demote her, thought that she was a better choice than Storms or Tinsky as team leaders in two of the three new practice areas. Plaintiff, by her own description, was not an experienced government contracts or international lawyer; and the evidence is substantial that Plaintiff's experience, both before and during the time that she served as team leader for the three practice groups, pertained to real estate matters, even when her work could be characterized as falling within the commercial or international matters. Plaintiff had none of the core substantive experience that Storms and Tinsky had in the areas to which they were assigned under the restructuring, less years as practicing lawyers notwithstanding.
Plaintiff also claims that pretext may be inferred from evidence that the restructuring was motivated by a discriminatory animus based on age. She first points to the fact that while Storm and Tinsky are members of the same protected class (female) and held different job titles, they are substantially younger than she (although Tinsky is within the same protected age class). She next points to Osborne's statements at an August 2010 meeting of the LD leadership team that he was interested in creating a "value model" for the LD that considered "law dept demographics" including "age distribution," and involved hiring more junior lawyers. Pl.'s Ex. 28.
Finally, Plaintiff heavily relies upon what she refers to "me-too" evidence that establishes a "pattern and practice" and "corporate culture" of discrimination against older women. Plaintiffs "pattern and practice" evidence consists of testimony from seven former Booz Allen employees whom she describes as "similarly situated, top-performing women . . . who were all marginalized and then pushed out of the firm once they reached a certain age and career level." Doc. No. 261 at 22. Each of these individuals identified management decisions they or eight other former Booz Allen employees experienced while at Booz Allen, including demotions, terminations and lack of promotions, which they believed evidenced discrimination on the basis of sex or age.
"Pattern and practice evidence" may establish discrimination on a class-wide basis and when so established, an inference of discrimination may be drawn as to any member of that class. See Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998) cert. granted, judgment vacated, 527 U.S. 1031, 119 S.Ct. 2388, 144 L. Ed. 2d 790 (1999) ("When the class plaintiffs prove the existence of a discriminatory practice, then that finding benefits them in the adjudication of individual claims by creating a presumption that the individual class members were victims of the discriminatory practice.") Typically, pattern and practice evidence consists of statistical proof of disparate impact within the work force, often accompanied by direct evidence of discriminatory animus on a class basis, such as statements by supervisors condoning discriminatory conduct. See, e.g. Holsey v. Armour & Co., 743 F.2d 199, 214 (4th Cir. 1984). Some courts have also recognized that pattern and practice evidence may be used in a non-class action case to raise an inference of discrimination against a particular member of that case. See, e.g. Gilyard v. Northlake Foods, Inc., 367 F.Supp.2d 1008, 1015 (E.D.Va. 2005) (citing Lowery, supra). Some courts have also admitted anecdotal evidence of discriminatory animus generally where there is demonstrable link to the plaintiff and her treatment. See, e.g., Robinson v. Runyon, 149 F.3d 507, 514 (6th Cir. 1998) (plaintiff "has connected the bogus application directly to her own work area and to one of the managers involved in the case."); Mendelsohn v. Sprint/United Mgmt. Co., 402 F. App'x 337, 340 (10th Cir. 2010) ("[T]he plaintiff must demonstrate a nexus between the allegedly discriminatory statements and the defendant's decision to terminate her. Anecdotal evidence of discrimination should only be admitted if the prior incidences of alleged discrimination can somehow be tied to the employment actions disputed in the case at hand.") (internal citations omitted); but see Sprint/United Management Company v. Mendelsohn, 552 U.S. 379, 380 (a court has "wide discretion" to exclude under Fed. R. Civ. P. 403 "testimony by nonparties alleging discrimination at the hands of supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff.")
Plaintiff's use of "me-too" evidence to establish pretext goes substantially beyond any recognized jurisprudence. First, the evidence is insufficient to establish class-wide "pattern and practice" discrimination under any recognized methodology. See generally, Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339, (1977) (where the Supreme Court recognized statistical evidence as an appropriate basis upon which to establish class-wide pattern and practice discrimination.) In that regard, Plaintiff has not proffered any of the kinds of statistical proof of disparate impact or direct evidence of discriminatory animus necessary to raise the inferences and rebuttable presumption that Plaintiff relies upon.)
Rather than statistics, Plaintiff relies centrally on the subjective judgments of former employees who held a variety of jobs, at a variety of times between 2007 and 2014, under a variety of managers, in different aspects of the Booz Allen organization, none of whom were affected by anything pertaining to the restructuring or any decisions made with respect to that restructuring, including any decisions pertaining to the plaintiff.
The record also does not contain the kind of direct evidence of discriminatory animus necessary to raise the required inferences. Plaintiff concedes that no one ever made any reference to her gender or age that she considered to be discriminatory, Pl.'s Dep. Tr. 16:8-17:11; 26:7-19; 31:11-18;
Ostensibly in recognition of the limitations inherent in its "me-too" evidence, Plaintiff proposes to establish class-wide discrimination through McDonnell-Douglas prima facie cases of discrimination on behalf of the testifying former employees. Even were such proof sufficient to establish class-wide discrimination in a non-class action case (although Plaintiff has not cited any case that has recognized such an approach), establishing liability in such a fashion would require in this case seven to 15 mini-trials that would involve specific determinations, first by the Court and then by the jury, whether Booz Allen articulates a non-discriminatory reason for any particular adverse employment action and if so whether Plaintiff then produces sufficient evidence of pretext as to those reasons. Such an approach would involve the Court and the jury, in effect, adjudicating these hypothetical discrimination claims by other former employees, some of which may turn out to be more involved factually than even Plaintiff's, and result in a distraction and confusion for the jury, and exhaustion for all concerned, all without necessarily dealing dispositively with the central issues embedded in Plaintiffs claims.
Overall, this case more closely resembles the situation faced in Kozlowski v. Hampton Sch. Bd., 77 Fed. Appx. 133 (4th Cir. 2003). In Kozlowski, a high school football coach brought an age discrimination against the School Board for accepting the principal's recommendation not to renew his contract. At the conclusion of trial, the jury found in favor of the School Board. On appeal, the Fourth Circuit affirmed the district court's exclusion of evidence regarding the principal's prior acts of discrimination. The Fourth Circuit reasoned that "allowing the plaintiff the opportunity to prove, person by person, that in each case [the principal's] purposed reasons for non-renewal were false would have required lengthy and cumbersome mini-trials. This process would have required, for each non-renewed individual, testimony from [the principal] about why, five years earlier, he had refused to renew that coach's contract, rebuttal evidence and/or testimony from the plaintiff showing that those reasons were false, and reply evidence and/or testimony from the Board further justifying [the principal's] decision." Id. at 149. The Fourth Circuit therefore concluded that there was "no error in the court's decision to exclude this type of evidence, which would have been quite time consuming and would have distracted the jury from the central issue in this case. . ." Id. Based on all of the above reasons, the Court concludes that the proffered "pattern and practice" evidence does not, as a matter of law, rebut Defendant's legitimate, non-discriminatory reasons for Plaintiff's demotion.
Plaintiffs remaining claim is that Defendant unlawfully retaliated against her by forcing her to sign the April 5 memo and constructively discharging her after she reported her concerns that she was being discriminated against to Chief Personnel Office Betty Thompson. "In order to establish a prima facie case of retaliation, a plaintiff must prove three elements: (1) that she engaged in a protected activity; (2) that her employer took an adverse employment action against her; and (3) that there was a causal link between the two events." E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005). "To establish an adverse employment action in the context of a retaliation claim, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Nathan v. Takeda Pharm. Am., Inc., 890 F.Supp.2d 629, 646 (E.D. Va. 2012) aff'd, 544 F. App'x 192 (4th Cir. 2013) (internal citation omitted). See also Lettieri v. Equant, Inc., supra, 478 F.3d at 650 (finding that the plaintiff proffered sufficient probative evidence of continuing retaliatory conduct and animus in the seven-month period between her complaint and her termination to satisfy the causation element of her prima facie case of retaliation).
Assuming, without deciding, that Plaintiff's conversation with Thompson constituted protected activity, the record is insufficient, as a matter of law, to find that she suffered any adverse employment action as a result of that conversation. Plaintiff testified that on January 26, 2011, she was informed that she was being demoted to a Senior Associate effective April 1. Pl.'s Dep. Tr. 200:7-20. Plaintiff further testified that the memo "had absolutely no new information in it . . . with the exception of the voluntary demotion." Id at 279:14-17. Nevertheless, Plaintiff claims that she suffered an adverse employment action when she signed the memo because it forced her to agree that her demotion was "voluntary" when it was not. It is unclear to the Court what the term "voluntary" means within the context of the memo; but even assuming that it means, as Plaintiff seems to contend, that she had a choice whether to stay in her existing position or transfer to her new position, the Court does not find Booz Allen's insistence that she sign the memo or resign an "adverse employment action" materially beyond that imposed before she was presented with the memo. See Nathan, supra, 890 F. Supp. 2d at 646. Likewise, Plaintiff's claim that she was constructively discharged as a result of talking to Ms. Thompson has no support in the record. The decision to demote Plaintiff was made before her conversation with Ms. Thompson.
For the reasons discussed above, the Court finds that there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law. The court therefore GRANTS Defendant's Motion for Summary Judgment.
An appropriate Order will issue.
