Opinion
Civil Action No. 03-656 (GK).
March 3, 2005
MEMORANDUM OPINION
Plaintiff, Erin Hawley, a former employee of Blackboard, Inc. ("Blackboard"), brings this suit alleging discrimination, constructive termination and retaliation on the basis of sex, pregnancy and disability in violation of the District of Columbia Family and Medical Leave Act ("DCFMLA"), D.C. Code §§ 32-501,et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01, et seq.; unequal pay in violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d); and intentional infliction of emotional distress.
This matter is before the Court on Defendant's Motion for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is granted in part and denied in part.
I. BACKGROUND
Blackboard is a "software company providing e-education products and services to institutions of higher education, K-12 programs, corporate/government and international clients." Def.'s Statement of Material Facts, ¶ 1. Founded by seven college students in 1997, the company grew to sixty employees in 1998 and 390 employees in 2000. See id. ¶ 4. Presently, Blackboard has approximately 500 employees. See id.
In July 1999, Plaintiff began her employment at Blackboard in the position of Partner Alliances Manager. See id. ¶ 6. She "worked in channel and partner relationships, where she was responsible for developing business through potential business partners outside of the education market." Id. ¶ 8. In October 1999, she was promoted to Director of Partner Alliances. See Compl. ¶ 13.
In July 2000, Plaintiff suffered her first miscarriage. See Compl. ¶ 20.
In February 2001, Blackboard created a "Strategic Markets team," and promoted Plaintiff to a senior director position to lead this team from its inception. See Def.'s Statement of Material Facts, ¶¶ 10, 12, 13.
In March 2001, Plaintiff suffered her second miscarriage. See id. ¶ 35. This second miscarriage precipitated a series of extensive medical evaluations. As a result, beginning on October 1, 2001, Plaintiff took three months and one week of approved medical leave under the DCMFLA. See id. ¶ 17. While on this medical leave, she was covered by Blackboard's short term disability insurance. See id. ¶ 18. Prior to going on this medical leave, Plaintiff's annual salary was $105,000. See id. ¶ 60.
In fiscal year 2001, the Strategic Markets team sold only $3.2-$3.3 million of its $9 million sales quota. See id. ¶ 19. Blackboard claims that "[a]s a result of the performance of the Strategic Markets team in 2001, Blackboard disbanded the team during the fourth quarter of 2001." Id. ¶ 20. Blackboard split the team into a Corporate Markets team headed by Chuck Brodsky and a Government Solutions team headed by Jamie Watt. See id. "This reorganization was one of several implemented by Blackboard in the early years of its explosive growth and development." Id. ¶ 21.
In early January 2002, Plaintiff learned that she was pregnant.See id. ¶ 22. Shortly thereafter, on January 10, 2002, she returned to work. See id. ¶ 23. Blackboard claims that "[b]efore returning to work, Hawley told her supervisor Susan Katz, Blackboard's Director of Corporate Sales, and her colleague Jamie Watt that she wanted to work from home and she did not want to supervise any employees." Id. ¶ 24. Blackboard contends that it granted both requests and "allowed Hawley to work from home three to four days a week with no managerial responsibilities."Id. ¶ 25. Blackboard also maintains that, per Plaintiff's request, Plaintiff worked with Watt on the Government Solutions team. See id. ¶ 26. According to Blackboard, "Hawley's salary remained $105,000 and her rank remained Senior Director." Id. ¶ 27.
Plaintiff contends that "[a]t no time did [she] ever state that she wanted to relinquish her senior position, core job responsibilities, compensation level, or title." Pl.'s Statement of Material Facts, ¶ 24. In addition, she maintains that, upon her return, she "worked under Mr. Watt where beforehand Mr. Watt had reported to her." Id. ¶ 26. Further, she claims that her "compensation was reduced to $95,000 and her rank was reduced to the equivalent of a regional sales manager, located on the second lowest tier of Blackboard's sales hierarchy." Id. ¶ 27.
On February 23, 2002, Plaintiff informed Watt that she was pregnant with twins. See Compl. ¶ 59. As Plaintiff's pregnancy continued, she encountered medical problems. On May 21, 2002, Plaintiff's doctor, a high-risk pregnancy specialist, placed Plaintiff on immediate bed-rest, but agreed that she could work from home full-time as long as she did not travel. See id. ¶ 71. Blackboard allowed Plaintiff to continue to work in a full-time status while on full-time bed rest. See Def.'s Statement of Material Facts, ¶ 31. By July 18, 2002, Plaintiff's medical difficulties required hospitalization. See Compl. ¶ 80. Plaintiff remained hospitalized until the birth of her twins on August 14, 2002. See id.
From July 17, 2002 until August 13, 2002, Plaintiff was on statutory medical leave. See Def.'s Statement of Material Facts, ¶ 34. From July 17 until July 25, she received salary from Blackboard and from July 26 until August 13, she received short-term disability payments in the amount of $1,000 per week.See id. ¶ 35. From August 14, 2002 until October 30, 2002, Plaintiff was on statutory family leave. See id. ¶ 36. From August 14 until October 8, she received salary from Blackboard under Blackboard's maternity leave policy. See id. ¶ 37. From August 14 to October 30, 2002, Plaintiff received a combination of (1) $6,000 (under the short-term disability policy, six weeks at $1,000 per week) and (2) $15,278.85 (from Blackboard), for a total of $21,278.85. See id. ¶ 39.
During the summer of 2002, Blackboard reorganized again and formed an Emerging Markets team. That team, which was to be led by Brodsky, merged the Corporate Markets team and the Government Solutions team and transferred the K-12 programs from the regional sales divisions. See id. ¶ 41. As a result of this reorganization, the Government Solutions team on which Plaintiff had participated from January 2002 until her July 17 hospitalization no longer existed.
On September 19, 2002, Plaintiff sent Blackboard CEO Michael Chasen a detailed letter outlining her grievances over the past three years. See Pl.'s Statement of Material Facts, ¶ 42. In response, Chasen instructed Todd Gibby, Blackboard's Senior Vice President of Sales, to "offer [Plaintiff] any position that she wanted, to make sure that she was happy, to hire her at the exact same position and salary that she had left at, and that he [Gibby] didn't have to worry about that affecting any of his budget." Def.'s Statement of Material Facts, ¶ 44.
Blackboard claims that "[i]n Gibby's conversation with Hawley, he suggested five different job possibilities. They were: (1) corporate and government sales; (2) `K-12' sales (i.e., kindergarten through twelfth grade schools); (3) business development; (4) managing the sales force education program; and (5) managing and re-engineering Blackboard's process for responding to requests for proposals (RFPs)." Id. ¶ 45 (internal citations omitted). According to Blackboard, "[t]hese possibilities would have enabled [Plaintiff] to retain her Senior Director status, her salary and her related compensation." Id. ¶ 46. Plaintiff maintains that "[a]t most, Mr. Gibby discussed three job opportunities with [her]." Pl.'s Statement of Material Facts, ¶ 45. She further alleges that "[i]n reviewing possible job opportunities for [her], Mr. Gibby did not discuss job titles or compensation nor did he ever suggest to [her] that she would or could obtain Senior Director status upon her return from maternity leave." Id. ¶ 46.
Plaintiff "declined" the RFP position, Hawley Dep. at 314; said that she would "consider" the K-12 sales position, id.; and said that business development seemed "most suited for [her] professional development than any of the others." Id. Plaintiff exchanged messages with Jack Dilanian and Paul Terry, the respective supervisors of the K-12 sales and business development positions, but "nothing materialized." Id. ¶ 49.
On October 16, 2002, Plaintiff sent an email to Gibby: "At this point, I think its best for all of us if Blackboard put together a severance package that will allow us both to part ways without further issue." Id. ¶ 50. Blackboard offered Plaintiff three months severance, but Plaintiff rejected the offer. See id. ¶¶ 51, 52. Plaintiff claims that "[i]n October 2002, [she] was constructively terminated." Compl. ¶ 91.
On November 12, 2002, Plaintiff formally submitted her resignation to Chasen "to the extent that Blackboard has not terminated me already." Pl.'s Statement of Material Facts, ¶ 53. In her November 12 letter, Plaintiff complained about Blackboard's supposed failure to try to find her an acceptable position. On November 20, 2002, Howard Allentoff, then-Vice-President of Human Resources, wrote to Plaintiff, "we remain willing to work together to find a mutually agreeable role for you at Blackboard. Should you desire to continue such a dialogue, please contact me by no later than November 25, 2002." Def.'s Statement of Material Facts, ¶ 55. Plaintiff did not respond to Allentoff's letter because she claims that she was "working with counsel at that point." Id. ¶ 57.
On March 3, 2003, Plaintiff filed this case in the Superior Court for the District of Columbia alleging discrimination, constructive termination and retaliation on the basis of sex, pregnancy and disability in violation of the District of Columbia Family and Medical Leave Act and the District of Columbia Human Rights Act; unequal pay in violation of the Equal Pay Act; and intentional infliction of emotional distress. On March 11, 2003, Defendant removed the instant action to this Court.
In Count I of the Complaint, Plaintiff claims that Blackboard "discriminated against [her] on account of her gender, and on account of her pregnant status, during the course of her employment with Blackboard. This discrimination was with respect to the terms, conditions, and privileges of [her] employment at Blackboard." Compl. ¶ 93. In Count II, she alleges that "Blackboard discriminated against [her] and demoted [her] because she took medical leave and intended to take maternity leave[.]"Id. ¶ 100. In Count III, she maintains that "Blackboard constructively terminated [her] because of her intention to take medical leave[.]" Id. ¶ 107.
In Count IV of the Complaint, Plaintiff contends that Blackboard "discriminated against [her] on account of an actual and/or perceived disability, during the course of her employment by Blackboard." Id. ¶ 112. In Count V, she claims that Blackboard "retaliated against [her] on account of an actual and/or perceived disability, during the course of her employment by Blackboard." Id. ¶ 118. In Count VI, she alleges that Blackboard "constructively terminated [her] on account of an actual and/or perceived disability, during the course of her employment by Blackboard." Id. ¶ 124.
In Count VII of the Complaint, Plaintiff maintains that "[d]uring the course of [her] employment with Blackboard, Blackboard paid wages, compensation and benefits to her, including salary, bonuses, stock options, and stock, on the basis of her sex, at a rate less than the rate at which Blackboard paid wages to employees of the opposite sex in the same establishment for equal work on jobs the performance of which required equal skill, effort, and responsibility, and which were performed under similar working conditions." Id. ¶ 130. In Count VIII, she contends that "Blackboard's discriminatory and retaliatory conduct was intentional or reckless in that Blackboard, and its owners, managers and supervisory employees, had the specific purpose of inflicting severe emotional distress on [her]; fully intended its conduct; and knew or should have known that severe emotional distress would likely result." Id. ¶ 138.
Plaintiff seeks declaratory and injunctive relief; compensatory, punitive and exemplary damages; and costs incurred, including attorneys' fees. See id. at 22.
On September 24, 2004, Defendant filed the instant Motion for Summary Judgment.
II. STANDARD OF REVIEW
Summary judgment should be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In determining whether the moving party has met this burden, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). See Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). Once the moving party makes its initial showing, however, the nonmoving party's opposition must consist of more than mere unsupported allegations or denials and must demonstrate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. See McKinney v. Dole, 765 F.2d 1129, 1135 (D.C. Cir. 1985). Accordingly, at that point, the non-moving party is "required to provide evidence that would permit a reasonable [fact-finder] to find" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. ANALYSIS
A. Blackboard Is Not Entitled to Summary Judgment on Plaintiff's Sex and Pregnancy Discrimination Claim (Count I)
In Count I of the Complaint, Plaintiff claims that Blackboard "discriminated against [her] on account of her gender, and on account of her pregnant status, during the course of her employment with Blackboard. This discrimination was with respect to the terms, conditions, and privileges of [her] employment at Blackboard." Compl. ¶ 93. Blackboard argues that it is entitled to summary judgment on Count I for two reasons. First, it claims that Plaintiff has failed to state a claim of gender-based hostile work environment. Second, it alleges that Plaintiff has failed to establish an adverse employment action. In her Opposition to Blackboard's Motion for Summary Judgment, however, Plaintiff responds only to Blackboard's second argument. Accordingly, the Court will treat as conceded Blackboard's first argument that Plaintiff has failed to state a claim of gender-based hostile work environment, and address only Blackboard's second argument. See United States v. Real Property Identified As: Parcel 03179-005R, 287 F.Supp.2d 45, 61 (D.D.C. 2003) ("If the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, the court may treat those arguments as conceded.") (internal citation omitted), and cases cited therein.
1. The Applicable Statute of Limitations
The DCHRA has a one-year statute of limitations. See D.C. Code § 2-1403.16(a). On December 27, 2002, Plaintiff and Blackboard entered into a written agreement that the statute of limitations for filing suit would be tolled from December 27, 2002 until February 28, 2003, "pending settlement discussions." Pl.'s Exs. 39, 40. Settlement discussions were unsuccessful. Therefore, on March 3, 2003, the following business day, Plaintiff filed the instant action. Thus, under the DCHRA, and in light of the tolling agreement, for any alleged adverse employment action to be actionable, it must have occurred between December 27, 2001 and November 12, 2002, the date Plaintiff resigned from Blackboard.
2. The Governing Law
The legal standard for discrimination under the DCHRA is substantively the same as under Title VII. See Carpenter v. Fed. Nat'l Mortg. Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999). See also Knight v. Georgetown Univ., 725 A.2d 472, 478, n. 5 (D.C. 1999) (noting that the same body of law is used to construe both sets of statutes); Daka v. Breiner, 711 A.2d 86, 94 (D.C. 1998) (noting that the D.C. Court of Appeals "in deciding issues arising under the DCHRA, consistently relies upon decisions of the federal courts in Title VII cases as particularly persuasive authority"). Thus, as under Title VII, where, as here, the plaintiff has no direct evidence that the adverse employment actions she is complaining about are the result of prohibited discrimination, the claim is analyzed under the three-step framework ofMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must establish, by a preponderance of the evidence, a prima facie case of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. To state a prima facie case of discrimination, a plaintiff must show that: "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999) (internal citation omitted). To prevail, therefore, a plaintiff must demonstrate that her employer took some adverse action because of her membership in the statutorily protected group. See Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002).
If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to "produce admissible evidence that, if believed, would establish that the employer's action was motivated by a legitimate, nondiscriminatory reason." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004) (internal citation omitted). See McDonnell Douglas, 411 U.S. at 802; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). "The employer's burden is one of production, not persuasion." Teneyck, 365 F.3d at 1151 (internal citation omitted).
If the employer satisfies this burden, "`the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [i]s discriminationvel non.'" Teneyck, 365 F.3d at 1151 (quoting Reeves, 530 U.S. at 142-43) (internal quotations and citations omitted). At this point, "a court reviewing summary judgment looks to whether a reasonable jury could infer intentional discrimination . . . from all the evidence, including `(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its action; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer).'" Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (quoting Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002) (internal quotations omitted)).
3. Plaintiff has alleged an adverse employment action.
As indicated above, in order to establish a prima facie case of discrimination, a plaintiff must show that she suffered an adverse personnel or employment action. See Brody, 199 F.3d at 455.
Minor changes in work-related duties alone do not constitute an actionable injury under Title VII. See id.; Mungin v. Katten, Muchin Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997);Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). To constitute an adverse action, there must be some objective harm, namely, the action must have "materially adverse consequences affecting the terms, conditions, or privileges of [Plaintiff's] employment or her future employment opportunities such that a reasonable trier of fact could conclude that [she] has suffered objectively tangible harm." Brody, 199 F.3d at 457. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (same). This means that "[m]ere idiosyncracies of personal preference" and other actions imposing purely subjective harms, such as dissatisfaction or disappointment, are not sufficient to state an actionable injury. Brody, 199 F.3d at 457. See Forkkio, 306 F.3d at 1130-31 (holding that plaintiff could not establish an adverse action on the basis that the reassignment deprived him of "prestige"); Jones v. Billington, 12 F.Supp.2d 1, 13 (D.D.C. 1997) ("[N]ot everything that makes an employee unhappy is an actionable adverse action.") (internal quotation omitted).
Instead, there must be some objective harm: "a tangible change in the duties or working conditions constituting a material employment disadvantage." Walker v. WMATA, 102 F.Supp.2d 24, 29 (D.D.C. 2000) (internal citations and quotations omitted). "Paradigmatically, this means discharge, but actions such as demotion, undesirable reassignment, or the loss of a bonus can also count as adverse." Dickerson v. SecTek, Inc., 238 F.Supp.2d 66, 73 (D.D.C. 2002) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) and Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001)).
Plaintiff claims that "[d]uring [her] tenure, Blackboard committed multiple adverse employment actions." Pl.'s Opp'n at 3. First, she contends that she was denied performance-based evaluations during her first and second years of employment at Blackboard and that this adversely affected her opportunity for salary increases and stock benefits. See id. at 4-5. Plaintiff's claim about not receiving a performance-based evaluation during her first year of employment (i.e., from July 1999 until July 2000) is not actionable because it is barred by the applicable statute of limitations. Assuming that Plaintiff can prove at trial that her failure to receive a performance-based evaluation during her second year of employment adversely affected her opportunity for salary increases and stock benefits, it clearly rises to the level of an adverse employment action within the meaning of Brody. See Burlington Indus., Inc., 524 U.S. at 761 ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."). See also Dickerson, 238 F.Supp.2d at 73; Walker, 102 F.Supp.2d at 29.
Second, Plaintiff alleges that "Blackboard deliberately failed to restore [her] to her senior-level position upon her return from statutory medical leave in January 2002 and placed her in an entrylevel sales position with reduced compensation, benefits, job responsibilities, and employment opportunities." Pl.'s Opp'n at 6. Third, she argues that her "compensation, benefits, and job responsibilities were progressively reduced during the course of her [third] pregnancy," i.e., January-August 2002. Id. at 7. While Blackboard maintains that Plaintiff's compensation and benefits remained unchanged, it admits that when Plaintiff returned to work in January 2002, her job responsibilities were significantly reduced. See Def.'s Reply at 16. Fourth, Plaintiff contends that Blackboard "refused to restore [her] to an equivalent job position upon her return from maternity leave in October 2002. The company subsequently blocked her efforts to resume any employment with the company, forcing her to resign for lack of a job." Pl.'s Opp'n at 10. Assuming that Plaintiff can prove these allegations at trial, they clearly rise to the level of adverse employment actions within the meaning of Brody. See Burlington Indus., Inc., 524 U.S. at 761. See also Dickerson, 238 F.Supp.2d at 73; Walker, 102 F.Supp.2d at 29.
Fifth, Plaintiff claims that throughout her employment at Blackboard, she "was paid less in compensation compared to her male counterparts." Pl.'s Opp'n at 11. Specifically, she maintains that she was paid less as Partner Alliances Manager than "[t]hree male salespersons working in the same department — Leonard Napolitano, Jack Dilanian, and Andrew Olenik[.]" Id. This claim is not actionable because it is barred by the applicable statute of limitations. Plaintiff's tenure as Partner Alliances Manager ended in February 2001. Plaintiff also alleges that when she was promoted to Senior Director in February 2001, she received a base salary of $105,000 — "the same salary level as male directors ranked one step below her." Id. This claim fails because, as Blackboard points out, Plaintiff "cites no authority for the implication that she should have been paid more than males of mere `Director' rank, where the record is undisputed that rank at Blackboard did not necessarily correlate to levels of responsibility." Def.'s Reply at 20 (citing Def.'s Statement of Material Facts, ¶¶ 81, 82).
Plaintiff also claims that "Kenneth Roy, another senior director in Blackboard's sales department, was offered his position at a salary level of $140,000." Id. Assuming that Plaintiff can prove this allegation of unequal pay at trial, it clearly rises to the level of an adverse employment action within the meaning of Brody. See Burlington Indus., Inc., 524 U.S. at 761. See also Dickerson, 238 F.Supp.2d at 73; Walker, 102 F.Supp.2d at 29.
Claims of unequal pay under the DCHRA are governed by the standards of the Equal Pay Act. See Howard Univ. v. Best, 484 A.2d 958, 984 (D.C. 1984).
Finally, Plaintiff maintains that she "received fewer stock options than her male counterparts." Pl.'s Opp'n at 11. Specifically, she claims that "[f]or three years of work at Blackboard, [she] earned 16,775 stock options total. In 8-9 months less than [her], Mr. Olenik and Mr. Napolitano amassed between 31,200 and 67,500 in stock options. In just 5 additional months, Mr. Dilanian totaled 52,750 stock options." Id. To the extent that this claim relates to Dilanian and Olenik, it is not actionable because, as discussed infra, Plaintiff has failed to demonstrate that her job is substantially equal to Dilanian's or Olenik's under the terms of the Equal Pay Act. To the extent that it relates to Napolitano, however, if she can prove her allegations at trial, it clearly rises to the level of an adverse employment action within the meaning of Brody. See Burlington Indus., Inc., 524 U.S. at 761. See also Dickerson, 238 F.Supp.2d at 73; Walker, 102 F.Supp.2d at 29.
B. Blackboard Is Not Entitled to Summary Judgment on Plaintiff's Retaliation Claim (Count II)
In Count II of the Complaint, Plaintiff alleges that "Blackboard discriminated against [her] and demoted [her] because she took medical leave and intended to take maternity leave[.]" Compl. ¶ 100. In evaluating this claim, the burden-shifting framework of McDonnell Douglas applies. See Lathram, 336 F.3d at 1089; Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003). To survive a motion for summary judgment, the plaintiff need only establish facts adequate to permit a reasonable jury to make an inference of retaliatory motive. See Mitchell v. Baldrige, 759 F.2d 80, 85 (D.C. Cir. 1985).
To establish a prima facie case of retaliation, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) her employer took an adverse personnel action; and (3) a causal connection existed between the two.See Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000);Brody, 199 F.3d at 452.
In the instant case, it is clear that Blackboard is not entitled to summary judgment on Plaintiff's retaliation claim for two reasons.
First and foremost, all of the central factual issues are in dispute, thus precluding summary judgment. For example, Blackboard claims that "[a]ccording to Hawley, she was `demoted in January 2002 because Blackboard allegedly reduced her salary and her rank of Senior Director." Def.'s Statement of Material Facts, ¶ 59. Blackboard contends, however, that "Hawley has acknowledged there were no such reductions." Def.'s Mot. at 8. According to Plaintiff, she returned to Blackboard in January 2002 "to a subordinate staff position with $10,000 less in base salary, approximately $128,000 less in total potential earnings, no supervisory or managerial authority, and `plain sales' responsibilities." Pl.'s Opp'n at 14.
Second, drawing all reasonable inferences in favor of Plaintiff, if she can prove her allegations, a reasonable jury could find by a preponderance of the evidence that she was demoted upon her return in January 2002 in retaliation for taking statutory medical leave.
On October 1, 2001, when Plaintiff commenced her statutory medical leave, she was serving as Senior Director of Strategic Markets in Blackboard's sales division. According to Plaintiff, "[t]his was an upper-level supervisory position with `significant responsibility [for] heading up [a] new team that was tasked with selling into new markets for Blackboard.' It involved managing a sales team of 9-15 persons across numerous software technology markets[.]" Id. at 13-14 (internal citations omitted).
In late 2001, shortly before Plaintiff's expected return, Plaintiff was told that her team was going to be dissolved. See Def.'s Statement of Material Facts, ¶ 20. Plaintiff claims that "[u]pon learning of the team's so-called demise, [she] contacted Human Resources to find equivalent employment." Pl.'s Opp'n at 14. Blackboard in effect concedes, however, that Plaintiff was not restored to the same or equivalent position upon her return from statutory medical leave in January 2002. Indeed, Katz testified that upon Plaintiff's return in January 2002, Plaintiff "had significantly less responsibility. She no longer was managing people. Her job role had changed. Her job function had changed." Katz Dep. at 268. Katz further testified that Plaintiff's job had "chang[ed] from a senior director of strategic markets to a regional sales manager position." Id. at 270. In addition, Plaintiff claims that "[b]ecause the job consigned [her] to a lower rank, she was not entitled to the same amount of stock options or the same bonus opportunities." Pl.'s Opp'n at 14-15 (internal citation omitted).
Accordingly, for the foregoing reasons, Blackboard is not entitled to summary judgment on Plaintiff's retaliation claim.
C. Blackboard Is Entitled to Summary Judgment on Plaintiff's Constructive Termination Claim (Count III)
In Count III of the Complaint, Plaintiff claims that "Blackboard constructively terminated [her] because of her intention to take medical leave[.]" Compl. ¶ 107. Constructive termination occurs "when the employer deliberately makes working conditions intolerable and drives the employee into an involuntary quit." Atl. Richfield Co. v. Dist. Of Columbia Comm'n on Human Rights, 515 A.2d 1095, 1101 (D.C. 1986). See Beebe v. Washington Metro. Area Transit Auth., 129 F.3d 1283, 1290 (D.C. Cir. 1997) (same).
In this case, Plaintiff claims that in late July 2002, after she recovered from childbirth, she contacted Brodsky, who was then managing her division, to ask when she might be able to return to work. See Pl.'s Opp'n at 22. According to Plaintiff, "Brodsky did not appear interested in having [her] return. When a staff assistant asked him what he planned to do with [her] job, he twice evinced a smirk and refused to give an answer." Id. Plaintiff also complains that Paul Terry "never responded to her inquiries" about a business development position and that Jack Dilanian "followed up on her call" about a K-12 sales position but was then "told by Mr. Gibby to please back away from speaking with her." Id. at 23-24.
It is clear from the foregoing that Plaintiff has failed to show the type of "intolerable" working conditions necessary to sustain a constructive discharge claim. Accordingly, Blackboard is entitled to summary judgment on Count III.
D. Blackboard Is Entitled to Summary Judgment on Counts IV, V and VI because Plaintiff Has Failed to Allege or Identify a Disability
In Count IV of the Complaint, Plaintiff contends that Blackboard "discriminated against [her] on account of an actual and/or perceived disability, during the course of her employment by Blackboard." Compl. ¶ 112. In Count V, she claims that Blackboard "retaliated against [her] on account of an actual and/or perceived disability, during the course of her employment by Blackboard." Id. ¶ 118. In Count VI, she alleges that Blackboard "constructively terminated [her] on account of an actual and/or perceived disability, during the course of her employment by Blackboard." Id. ¶ 124. Blackboard argues that it is entitled to summary judgment on Counts IV, V and VI because "Hawley has failed to allege any disability." Def.'s Reply at 8.
Blackboard's argument is convincing. Plaintiff does make a passing reference to pregnant employees as disabled. See Pl.'s Opp'n at 24-25. As Blackboard correctly points out, however, pregnancy is not a disability under the DCHRA. See 29 C.F.R. § 1630.2(h) ("Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments."). Accordingly, Blackboard is entitled to summary judgment on Counts IV, V and VI because Plaintiff has failed to allege or identify a disability.
Plaintiff suggests in her Opposition that in Count IV of the Complaint, she alleges a gender-based hostile work environment claim. See Pl.'s Opp'n at 25-31. In Count IV of the Complaint, however, Plaintiff alleges a disability-based hostile work environment claim. See Compl. ¶ 112. "Ordinarily, absent a formal motion to . . . amend the complaint, a court does not treat the contents of an opposition to a motion to dismiss as an amendment to a complaint." Rohrbaugh v. Inv. Co. Inst., 2002 WL 31100821, at *5, n. 10 (D.D.C. 2002) (citing Confederate Mem'l Ass'n v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993); Ali v. Dist. of Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002). The same standard applies here. See Velikonja v. Mueller, ___ F.Supp.2d ___, 2004 WL 3021397, *3, n. 2 (D.D.C. 2004) (applying this standard to a case on a motion for summary judgment).
E. Blackboard Is Not Entitled to Summary Judgment on Plaintiff's Equal Pay Act Claim (Count VII)
In Count VII of the Complaint, Plaintiff maintains that "[d]uring the course of [her] employment with Blackboard, Blackboard paid wages, compensation and benefits to her, including salary, bonuses, stock options, and stock, on the basis of her sex, at a rate less than the rate at which Blackboard paid wages to employees of the opposite sex in the same establishment for equal work on jobs the performance of which required equal skill, effort, and responsibility, and which were performed under similar working conditions." Compl. ¶ 130. In her Complaint and deposition, Plaintiff identified four male Blackboard employees as alleged comparators: Jack Dilanian, Leonard Napolitano, Andrew Olenik and Kenneth Roy. See Compl. ¶¶ 18, 43, 44; Hawley Dep. at 51-52.
Plaintiff argues that her Equal Pay Act claim "falls within the three-year statute of limitations period permitted under the Fair Labor Standards Act for willful violations of equal pay laws." Pl.'s Opp'n at 40. The Fair Labor Standards Act provides that causes of action must be commenced within two years "except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a). A defendant's violation of the Equal Pay Act is willful or reckless within the meaning of § 255(a) if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute."McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993). A plaintiff need not show that an employer acted with intent to discriminate or in bad faith. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, n. 19 (1985).
In this case, Plaintiff claims that "Blackboard CEO Michael Chasen adheres to the policy that changes in salary or stock options cannot be made without his authorization, and it has been asserted by Blackboard executives that top level management, including Mr. Chasen, review and approve compensation plans." Pl.'s Opp'n at 40. Plaintiff also alleges that "it is Blackboard policy that compensation plans may not be modified beyond 10% without the express approval of the CEO. Blackboard's executive management team worked with vice-presidents on stock options and salary ranges, with recommendations being reviewed by Mr. Chasen before implementation." Id. Thus, a reasonable juror could conclude, by a preponderance of the evidence, that Blackboard "either knew or showed reckless disregard for the matter of" whether Blackboard's compensation structure was inherently unequal.
Plaintiff also argues that "the continuing violation doctrine brings within [her] claim all disparate acts that comprise a pattern or practice of discrimination." Pl.'s Opp'n at 40. Plaintiff is correct. See Anderson v. Zubieta, 180 F.3d 329, 335-36, n. 7 (D.C. Cir. 1999) (applying continuing violations doctrine to unequal compensation claim under Title VII), and cases cited therein.
Blackboard argues that Plaintiff has failed to establish aprima facie violation of the Equal Pay Act because she cannot show that her job was substantially similar to those four allegedly comparable males. In her Opposition to Blackboard's Motion for Summary Judgment, however, Plaintiff compares herself only to Napolitano and Roy. Accordingly, the Court will treat as conceded any comparison of Plaintiff's job with Blackboard employees other than Napolitano and Roy. See Real Property Identified As: Parcel 03179-005R, 287 F.Supp.2d at 61, and cases cited therein.
Plaintiff argues that Blackboard has "failed to produce key documents or evidence of the compensation for several of the comparators to [her]." Pl.'s Opp'n at 32. Plaintiff claims that "Blackboard's failure to produce evidence of the full compensation of these individuals, which is under their control and reasonably available to them, permits the inference that the evidence would be unfavorable to Blackboard." Id. According to Plaintiff, Count VII "should remain on the strength of these inferences alone." Id. at 33. The Court disagrees.
In Plaintiff's discussion of this issue in her Opposition, Plaintiff presents no evidence at all of the skill, effort, and responsibility required to perform either Dilanian's or Olenik's job. Plaintiff's conclusory allegations, without more, are insufficient to establish a prima facie case under the Equal Pay Act. See Howard Univ., 484 A.2d at 985 (concluding that "crucial elements of a prima facie case are missing" where plaintiff presented "no evidence on which the jury could have determined that [plaintiff] was performing `equal work, on jobs the performance of which requires equal skill, effort and responsibility'") (quoting 29 U.S.C. § 206(d)(1)); Younts v. Fremont County, Iowa, 370 F.3d 748, 753 (8th Cir. 2004) (concluding that plaintiff's "conclusory allegations about the similarity of the jobs are not sufficient to create a genuine issue of fact to avoid summary judgment").
The Equal Pay Act ("EPA") prohibits sex-based wage discrimination. "It stands for the straightforward proposition that employees doing equal work should be paid equal wages, regardless of sex." Goodrich v. Int'l Bhd. of Electrical Workers, AFL-CIO, 815 F.2d 1519, 1523 (D.C. Cir. 1987) (internal citation omitted).
The EPA amended § 6 of the Fair Labor Standards Act, to state,
(d) Prohibition of sex discrimination
(1) 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 [sic] pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .29 U.S.C. § 206(d)(1).
The plaintiff bears "the initial burden to prove wage disparity and job equality." Id. Specifically, to establish a prima facie violation of the EPA, the plaintiff must prove, by a preponderance of the evidence, that
(1) she was employed by [employer] doing substantially equal work on a job, the performance of which required substantially equal skill, effort, and responsibility as jobs held by members of the opposite sex; (2) the job was performed under similar working conditions; and (3) she was paid at a lower wage than members of the opposite sex doing equal work.Nyman v. FDIC Corp., 967 F.Supp. 1562, 1577 (D.D.C. 1997) (citing Corning Glass Works v. Brennan, 417 U.S. 188 (1974)). If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to "prove that unequal payments are made pursuant to some legitimate, non sex-based factor."Goodrich, 815 F.2d at 1523-24.
"Equal work" under the EPA "does not mean that the jobs being compared must be identical, but they must be more than merely comparable, i.e., capable of being compared." Id. at 1524 (internal citation omitted). "The prevailing standard is one of substantial equality." Id. (internal citation omitted). "A determination of substantial equality involves an inquiry into whether the jobs are substantially related and substantially similar in skill, effort, responsibility and working conditions."Id. (internal citation omitted).
In the instant case, Blackboard is not entitled to summary judgment on Plaintiff's Equal Pay Act claim, as it relates to either Napolitano or Roy, because all of the central factual issues regarding whether Plaintiff's job was substantially equal to Napolitano's job or Roy's job are in dispute. For example, during Plaintiff's tenure at Blackboard, Napolitano had five different jobs. Two of the jobs, Regional Sales Manager (South), which he held from 1998 until July 2000, and Director of Sales for the South Region, which he held from July 2000 until April 2001, involved "selling into the education market." Napolitano Decl. ¶ 6. In contrast to Napolitano, Plaintiff "covered corporations, associations, government for-profit institutions." Hawley Dep. at 146. According to Katz, who supervised both Napolitano and Plaintiff in their respective sales roles, the education and non-education markets are "not comparable" because they have "[d]ifferent budget cycles, different people that you sell into, different types of applications, different ways that the data is used." Katz Dep. at 226. Plaintiff claims, however, that "the fact that they sold in different markets does not diminish their similar functions. What all sales directors did, at bottom, was sell software licenses." Pl.'s Opp'n at 34.
Blackboard also contends that Napolitano traveled extensively in both his sales and non-sales roles. See id. ¶¶ 11, 12, 17, 26. Plaintiff, on the other hand, worked primarily out of Blackboard's office in D.C. and, according to Katz, "traveled substantially less than Napolitano[.]" Def.'s Statement of Material Facts, ¶ 97. See id. ¶ 96. Plaintiff points out, however, that "the evidence does not support any conclusion that travel was an essential criterion of the position." Pl.'s Opp'n at 35.
Napolitano's non-sales roles included (1) Director of Partner Alliances, which he held from April 2001 until April 2002; (2) Director of the Managed Infrastructure Group, which he held from April 2002 until July 2002; and (3) Regional Director of Global Services, which he held from November 2002 until July 2003.
In addition, Blackboard points out that Roy had approximately 24 years of experience and was responsible for a sales quota of $32 million in fiscal year 2002 and for supervising approximately 55 employees. See Def.'s Statement of Material Facts, ¶¶ 111, 112, 113. It notes that Plaintiff, in her position as Senior Director of Strategic Markets, was only responsible for a sales quota of $9 million and for supervising 9-15 employees. See id., ¶ 19; Pl.'s Opp'n at 14. Then, upon Plaintiff's return in January 2002 from statutory medical leave, she worked from home 3 to 4 days a week with no managerial responsibilities. According to Plaintiff, however, "[a]s senior directors, Mr. Roy and Ms. Hawley ultimately reported to the same individual, were held to the same level of standard, attended the same weekly meetings, both were held accountable for status reports, both were expected to conduct performance evaluations for their teams, and both had budget, hiring and firing responsibilities. [B]oth had supervisory responsibility, were responsible for Management by Objectives , and both oversaw the sales teams in their respective regions." Pl.'s Opp'n at 38.
Thus, it is clear that all of the central factual issues regarding whether Plaintiff's job was substantially equal to Napolitano's job or Roy's job are in dispute. Accordingly, Blackboard is not entitled to summary judgment on Count VII.
F. Blackboard Is Entitled to Summary Judgment on Count VIII because Plaintiff Has Failed to Demonstrate Sufficiently Outrageous Conduct to Maintain an Action for Intentional Infliction of Emotional Distress
In Count VIII of the Complaint, Plaintiff contends that "Blackboard's discriminatory and retaliatory conduct was intentional or reckless in that Blackboard, and its owners, managers and supervisory employees, had the specific purpose of inflicting severe emotional distress on [her]; fully intended its conduct; and knew or should have known that severe emotional distress would likely result." Compl. ¶ 138. Blackboard argues that it is entitled to summary judgment on Count VIII on the ground that Plaintiff has failed to demonstrate sufficiently outrageous conduct to maintain an action for intentional infliction of emotional distress.
"In the District of Columbia, intentional infliction of emotional distress has three elements: `(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.'" Sturdza v. United Arab Emirates, 281 F.3d 1287, 1305 (D.C. Cir. 2002) (quoting Howard Univ., 484 A.2d at 985). Intentional infliction of emotional distress liability attaches "only when the conduct goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized community." Jung v. Jung, 791 A.2d 46, 50 (D.C. 2002) (internal quotation omitted).
In this case, Plaintiff claims that "[t]he very nature of Blackboard's actions against her, particularly while she was pregnant, indicate that Blackboard at least recklessly disregarded the emotional impact its actions would have upon [her]. More probably, Blackboard deliberately intended to provoke an emotional reaction in [her] so strong she would reconsider her employment with the company." Pl.'s Opp'n at 41. The Court disagrees. Indeed, as Blackboard points out, Blackboard allowed Plaintiff to work in a full-time status from full-time bed rest; Plaintiff received all of the statutory leave to which she was entitled; she received short-term disability payments and salary from Blackbaord while on her statutory medical leave; she received salary from Blackboard under Blackboard's maternity leave policy; she remained on the payroll for 2½ additional weeks following the expiration of her statutory medical leave; she received 3 weeks of additional pay following the expiration of her maternity leave; and she declined to respond to Blackboard's letter offering to find her a position because she was "working with counsel." Plaintiff has, therefore, failed to demonstrate sufficiently outrageous conduct to maintain an action for intentional infliction of emotional distress. Accordingly, Blackboard is entitled to summary judgment on Count VIII.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted in part and denied in part.
An Order will issue with this opinion.