U.S. EEOC v. CTI Global Solutions Inc.
Filing
32
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/2/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
:
v.
:
Civil Action No. DKC 09-2570
:
CTI GLOBAL SOLUTIONS, INC.
:
MEMORANDUM OPINION
Presently
employment
summary
pending
and
discrimination
judgment
filed
Opportunity
Commission
motion
for
partial
Global
Solutions,
action
by
the
(“EEOC”)
summary
Inc.
ready
(ECF
for
are
the
motion
Plaintiff
(ECF
judgment
No.
resolution
No.
filed
30).
The
for
Equal
25)
this
partial
Employment
and
by
in
the
cross-
Defendant
issues
are
CTI
fully
briefed and the court now rules pursuant to Local Rule 105.6, no
hearing being deemed necessary.
For the reasons that follow,
Plaintiff’s motion will be granted in part and denied in part,
and Defendant’s cross-motion will be denied.
I.
Background
A.
Factual Background
The following facts are undisputed unless otherwise stated.
1.
CTI Global Solutions and the ARC Project
Defendant is a government contractor and recruiting company
that
has
supplied
staff
for
government
projects
since
1989.
(ECF No. 25-2, Whitfield Dep., at 26; ECF No. 25-1, at 2).
Employees
earn
wages
only
contracting assignments.
Defendant
contracted
if
Defendant
staffs
them
on
(ECF No. 25-4, Moore Dep., at 69).
with
the
FBI
to
prepare
20
million
documents at the FBI’s Alexandria Records Center (“ARC”) for
shipment, and in September 2008, Defendant began staffing its
employees on this long-term, full-time project.
Carroll Dep., at 45; ECF. No. 25-1, at 2).
(ECF No. 25-3,
The advertisement
that Defendant posted for this position stated that it required
the ability to lift 20 pounds.
Ex. 17).
(ECF No. 25-4, Moore Dep., at
The job description of the position that employees
received at orientation, however, required the ability to lift
25
pounds
Although
and
to
climb
Defendant
ladders.
neither
(ECF
solicited
No.
25-4,
information
at
105).
on
these
criteria in employee applications nor tested its employees to
verify their ability to lift and climb, it did inquire of their
ability
to
orientation.
2.
perform
these
functions
during
ARC
project
(Id. at 59; ECF No. 25-2, at 39).
Rita Tolliver’s Placement and Removal
Defendant hired Rita Tolliver to staff an open ARC project
position in October 2008, and Tolliver was “visibly pregnant” at
that time.
Tolliver’s
Financial
(ECF No. 25-5, Tolliver Decl., ¶¶ 1-3).
orientation,
Officer
Rodney
(“CFO”),
Whitfield,
observed
Defendant’s
Tolliver’s
During
Chief
pregnancy
and
requested that she accompany him outside the orientation room.
2
(Id. at ¶¶ 6-7; ECF No. 25-2, at 48).
Whitfield confirmed
Tolliver’s pregnancy before removing her from the ARC project
due to his concerns for Tolliver and her unborn child if she
performed the lifting and climbing functions of her position
(ECF No. 25-2, at 62; ECF No. 25-3, Ex. 3).
Tolliver informed
Whitfield that “this was [her] fourth pregnancy,” that she “knew
[her] limitations,” and that she “was capable of performing the
work.”
(ECF No. 25-5 ¶ 9).
Whitfield, however, insisted on
Tolliver’s removal, noting that Tolliver was the “same as a
boxer who gets knocked out – who all of a sudden says I’m fine
to the referee and the referee says, no, I don’t think you can.”
(ECF No. 25-2, at 74).
Following
Tolliver’s
removal
from
the
ARC
project,
Whitfield informed Dr. Dee Carroll, Defendant’s President and
Chief Executive Officer (“CEO”), of these events, and Carroll
concurred in his decision.
(ECF No. 25-3, Ex. 3).
Although
Whitfield and Carroll subsequently prepared a position statement
documenting the potential health risks of Tolliver’s position
for
her
health
and
the
health
of
her
unborn
child,
Carroll
acknowledged that these medical concerns were “irrelevant” to
Tolliver’s removal, which occurred solely due to her pregnancy.
(Id.; ECF No. 25-3, at 82; ECF No. 25-1, at 12).1
1
Louvenia
In their depositions, Carroll and Keith Moore, Defendant’s
Operations Manager, assert that the FBI had a policy prohibiting
3
Williams, Defendant’s legal counsel, then contacted Tolliver to
inform her that Defendant had concluded that the lifting and
climbing requirements of her position would be too “strenuous”
during pregnancy and offered to meet with Tolliver to discuss
other placement options.
(ECF No. 25-3, Ex. 3).
This meeting,
however, never took place, and Carroll later conceded that no
other available positions existed on which to staff Tolliver at
that time.
3.
(Id.; ECF No. 25-3, at 64).
Anje Proctor and Alfre Tisdale’s Placement and Removal
Anje Proctor and Alfre Tisdale applied for positions on the
ARC project in late 2008 and early 2009, respectively.
(ECF No.
25-9, Proctor Decl., ¶ 8; ECF No. 25-8, Tisdale Decl., ¶ 12).
Although the job descriptions for which Defendant hired them
included
climbing
and
lifting
duties,
Proctor
and
Tisdale
rarely, if ever, engaged in either of these activities.
No. 25-9 ¶ 5; ECF No. 25-8 ¶ 5).
the spring of 2009.
Tisdale’s
(ECF
Both women became pregnant in
(ECF No. 25-9 ¶ 6; ECF No. 25-8 ¶ 7).
physician
recommended
that
she
refrain
from
climbing ladders and lifting more than 15 pounds, and Tisdale
subsequently submitted this request to Defendant in June 2009.
pregnant women from working on the ARC project. (ECF No. 25-3,
at 74, 82; ECF No. 25-4, at 65.) Leslie Payne, an FBI employee
and the chief liaison between Defendant and the FBI, contests
this assertion. (ECF No. 25-7, Payne Aff., ¶ 4). As explained
in footnote 6, however, this factual dispute is immaterial to
the ultimate disposition of this action.
4
(ECF No. 25-8 ¶¶ 8-10).2
Defendant initially accommodated this
request, during which time “everything ran smoothly,” no other
employee had to lift or climb a ladder to aid her in performing
her position, and Bernard Fisher, Defendant’s program manager
for the ARC project, had “no criticisms of her performance.”
(Id. at ¶ 11; ECF No. 25-11, Fisher Dep., at 46, 50).
At
some
point,
Fisher
informed
Keith
Moore,
Defendant’s
Operations Manager, of Tisdale’s work restrictions due to her
pregnancy.
(ECF No. 25-4, at 84-85).
Although Defendant’s
interrogatories later identified two ARC project employees with
lifting
and
climbing
accommodated,
Elaine
restrictions
Wright,
an
whom
ARC
it
had
project
“temporarily”
program
manager
supervised by Fisher, asserted that Defendant had not previously
placed any ARC project employees on light duty.
at
11-12;
ECF
No.
30-4,
Wright
2
Dep.,
at
(ECF No. 31-1,
73-74).
Fisher
During one portion of his deposition, Moore suggests that
Proctor may have also submitted a doctor’s note requesting light
duty. (See ECF No. 25-4, at 65 (“I’m not sure . . . I believe
[Proctor] either had a doctor’s note or – I can’t remember
exactly.”). Plaintiff’s brief and the remainder of the record,
including Moore’s own deposition, contradict this statement.
See, e.g., id. at 67 (acknowledging that Proctor could have
continued working on the ARC project “[i]f the FBI didn’t . . .
have this issue with pregnant women”); ECF No. 25-11, at 42
(noting that Defendant removed Proctor from the project “due to
her pregnancy”)).
Although it appears that Moore likely
confused the details of Tisdale’s case with Proctor’s when
suggesting that Proctor requested light duty, this discrepancy
nonetheless remains.
Because Defendant does not raise this
inconsistency at any point in its brief, however, the court will
disregard it when addressing the currently pending motions.
5
simultaneously
reported
fear” for her safety.
Proctor’s
pregnancy
to
Moore
“out
of
(ECF No. 25-11, at 43-44).
Moore removed Tisdale and Proctor from the ARC project on
July 8, 2009, informing Tisdale that her removal occurred due to
her pregnancy and “for fairness,” and informing Proctor that
“pregnant women could not work in the FBI file room.”
25-8 ¶ 12; ECF No. 25-9 ¶ 8).
Defendant’s
office
for
(ECF No.
Tisdale and Proctor returned to
reassignment,
but
Defendant
did
not
immediately reassign either employee to a full-time position.
(ECF No. 25-8 ¶ 13; ECF No. 25-9 ¶ 9).
4.
Mitigation Efforts of Removed Employees
Following
their
removal
from
the
ARC
project,
Proctor, and Tisdale each sought new employment.
Tolliver,
Tolliver first
attempted to meet with Whitfield and Carroll to discuss her
removal and potential reassignment.
(ECF No. 25-5 ¶¶ 12-13).
When Whitfield refused to provide written confirmation of the
meeting date, Tolliver refused to attend the meeting.
¶¶ 14-15).
(Id. at
Carroll later conceded, however, that Defendant had
no positions “in mind” for Tolliver at the scheduled meeting
time.
posted
(ECF No. 25-3, at 64).
resumes
attended
job
online,
fairs.”
Tolliver also “networked heavily,
applied
(ECF
for
No.
25-5
numerous
¶
23).
positions,
She
and
obtained
“sporadic” employment translating for attorneys representing a
prisoner at Guantanamo Bay, and, although the work “forced [her]
6
to be away” from her family, she accepted the position because
her family “could not afford for [her] to be without paid work.”
(Id. at ¶ 17).
Shortly after her removal from the ARC project in July
2009,
Proctor
Monster.com.
she
posted
resumes
on
(ECF No. 25-9 ¶ 12).
accepted
temporary
one-day
CareerBuilder.com
and
Proctor also asserts that
assignments
that
Defendant
offered her because she “needed to have an income and no better
paying job was available.”
submitting
an
affidavit
Defendant contests this assertion,
from
Carroll
contending
that
Proctor
declined not only many of the proffered temporary assignments,
duration
unspecified,
but
also
a
long-term
placement
Pentagon that would have begun on October 1, 2009.
7, Carroll Aff., ¶¶ 4-5).
at
the
(ECF No. 30-
Proctor ultimately took a higher
paying job with another staffing agency during October 2009, and
she seeks no back pay beyond that time.
(ECF No. 25-9 ¶ 13; ECF
No. 25-1, at 9).
Tisdale has applied for more than 100 available positions
and participated in networking activities since her removal from
the ARC project.
information
(ECF No. 25-8 ¶ 20).
technology
obtaining employment.
Defendant
offered
classes
to
improve
(Id. at ¶ 22).
Tisdale
a
She also enrolled in
limited
her
chances
of
Both parties agree that
number
of
temporary
employment opportunities following her removal, but the record
7
is unclear regarding the duration of the temporary employment
and number of offers.
(ECF No. 25-1, at 8; ECF No. 30-1, at 4).
It appears that Tisdale declined many of these offers.
(ECF No.
30-7 ¶ 6).
Defendant
offered
Tisdale
a
long-term
placement
at
the
Pentagon in October 2009, and Tisdale accepted the position.
(ECF
No.
25-8
¶
16).
Tisdale
asserts
that
the
Pentagon
placement paid less than her position on the ARC project, but
Defendant contests this assertion, citing Carroll’s affidavit.
(Id. at ¶ 17; ECF No. 30-7 ¶ 7).
benefits,
without
on
the
benefits,
Decl., at 1).
ARC
at
project,
the
Tisdale earned $16/hour, with
while
Pentagon.
she
(ECF
earned
No.
$17.24/hour,
31-2,
Tisdale
Tisdale took unpaid leave under the Family and
Medical Leave Act in December 2009 and did not return to her
placement at the Pentagon.
4).
(ECF No. 25-8 ¶ 19; ECF No. 30-1, at
At the time Tisdale took leave, she had not received some
of her paychecks on time and Defendant had entered bankruptcy.
(ECF No. 31-2, at 2).
Tisdale thus maintains that work at the
Pentagon “was not available after [she] gave birth,” but Carroll
contests
placed
this
Tisdale
assertion
“in
her
by
noting
prior
or
that
an
Defendant
equivalent
could
position”
Tisdale had contacted Defendant about that possibility.
No. 25-8 ¶ 19; ECF No. 30-7 ¶ 11).
8
have
if
(ECF
B.
Procedural Background
Following its investigation of the events described above,
Plaintiff EEOC filed the present action against Defendant on
September
29,
2009.
(ECF
No.
1).
Plaintiff
alleged
that
Defendant’s removal of Tolliver, Tisdale, and Proctor from the
ARC project violated Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended by the Pregnancy Discrimination Act
(“PDA”), and sought both injunctive and monetary relief.
No. 1).
(ECF
Defendant waived service of process and answered the
complaint on November 30, 2009, denying Plaintiff’s allegations
and
raising
an
affirmative
defense
of
failure
damages as to each of the removed employees.
No. 5 ¶ 18).3
following
day,
to
mitigate
(ECF No. 4; ECF
The court entered an initial scheduling order the
but
subsequently
extended
the
discovery
and
motions deadlines to June 15, and July 16, 2010, respectively.
(ECF No. 6, at 2; ECF No. 9).
Defendant filed a suggestion of bankruptcy on December 14,
2009, requesting that the court stay its proceedings pursuant to
11
U.S.C.
§ 362,
and
the
court
administratively closed the case.
granted
this
(ECF Nos. 10-11).
3
request
and
Contending
Defendant’s answer also listed Plaintiff’s failure to
engage in good faith conciliation efforts and the removed
employees’ failure to exhaust administrative remedies as
affirmative defenses. (ECF No. 5 ¶ 15-17). Defendant fails to
raise either of these defenses in opposition to Plaintiff’s
motion for partial summary judgment.
9
that
the
automatic
stay
did
not
apply
because
the
EEOC
had
brought the action to enforce its police or regulatory power,
Plaintiff moved to reopen the case.
January
25,
2010,
this
court
(ECF No. 12, at 2-4).
issued
an
order
Plaintiff’s motion and reopening the proceedings.
On
granting
(ECF No. 14).
Subsequent scheduling orders required the parties to complete
discovery by January 14, 2011 and to submit all pretrial motions
to the court by February 22, 2011.
(ECF Nos. 19, 21).
On February 22, 2011, Plaintiff filed a motion for partial
summary
judgment,
asserting
that
Defendant
unlawfully
discriminated against Tolliver, Tisdale, and Proctor as a matter
of
law
and
that
no
failure-to-mitigate
evidence
defense.
existed
(ECF
to
No.
support
Defendant’s
25-1).
Defendant
responded to Plaintiff’s motion on March 23, 2011, opposing only
portions of the motion and submitting a cross-motion for partial
summary judgment as to Tisdale’s failure to mitigate damages.
(ECF No. 30-1).
Plaintiff replied to Defendant’s opposition and
cross-motion on April 11, 2011.
II.
(ECF No. 31-1).
Standard of Review
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled
56(a);
to
judgment
Celotex
Corp.
as
a
matter
v.
Catrett,
of
477
law.
U.S.
See
317,
Fed.R.Civ.P.
322
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
10
(1986);
Summary
judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
to
prevent
“A mere scintilla of
summary
judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249-50.
(citations omitted).
construe
the
favorable
to
facts
the
that
party
Liberty Lobby, 477 U.S. at
At the same time, the court must
are
presented
opposing
the
in
the
motion.
light
See
most
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
When faced with cross-motions for summary judgment, as in
this case, the court must consider “each motion separately on
its
own
merits
to
determine
whether
deserves judgment as a matter of law.”
316
F.3d
516,
523
(4th
Cir.
2003)
11
either
of
the
parties
Rossignol v. Voorhaar,
(internal
quotation
marks
omitted).
See also havePower, LLC v. Gen. Electric Co., 256
F.Supp.2d 402, 406 (D.Md. 2003) (citing 10A Charles A. Wright
and Arthur R. Miller, Federal Practice & Procedure § 2720 (3d
ed. 1983)).
The court reviews each motion under the familiar
standard for summary judgment, supra.
The court must deny both
motions if it finds there is a genuine issue of material fact,
“[b]ut if there is no genuine issue and one or the other party
is entitled to prevail as a matter of law, the court will render
judgment.”
10A Federal Practice & Procedure § 2720.
III. Analysis
Plaintiff
grounds.
moves
First,
for
partial
Plaintiff
summary
asserts
that
judgment
Defendant
on
two
removed
Tolliver, Tisdale, and Proctor from the ARC project based solely
on their pregnancies and in violation of Title VII, as amended
by the PDA.
(ECF 25-1, at 10).
Second, Plaintiff contends that
Defendant’s affirmative defense for failure to mitigate fails as
a matter of law due to lack of evidence.
Although
Defendant
does
not
oppose
(Id.
Plaintiff’s
at 18-19).
request
for
summary judgment on the issue of liability as to Tolliver and
Proctor,
it
opposes
Plaintiff’s
motion
as
to
liability
for
Tisdale’s removal and as to each removed employee’s mitigation
efforts.
(ECF No. 30-1, at 3-8).
Defendant also cross-moves
for partial summary judgment in its favor as to mitigation of
Tisdale’s damages.
12
A.
Sex/Pregnancy Discrimination
Title
VII
“prohibits
various
forms
of
employment
discrimination, including discrimination on the basis of sex.”
California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 27677
(1987).
When
enacting
the
PDA,
Congress
clarified
that
“[t]he terms ‘because of sex’ or ‘on the basis of sex’ include .
. . pregnancy . . . and [that] women affected by pregnancy . . .
shall be treated the same for all employment-related purposes .
.
.
as
other
persons
not
so
affected
but
similar
in
their
ability or inability to work.” 42 U.S.C. § 2000e(k).
A
plaintiff
discrimination
First,
the
Martin
on
basis
adverse
Alternatively,
–
may
evidence”
Logistics
framework”
the
establish
plaintiff
circumstantial
employer’s
may
a
of
that
354
plaintiff
commonly
pregnancy
demonstrate
her
employment
Mgmt.,
claims
for
using
pregnancy
may
referred
277,
284
as
the
methods.
direct
“motivated
Hill
“proceed
to
two
“through
decision.”
F.3d
intentional
(4th
under
v.
the
Lockheed
Cir.
a
or
2004).
‘pretext’
McDonnell
Douglas
approach – “under which the employee, after establishing a prima
facie case of discrimination, demonstrates that the employer’s
proffered permissible reason for taking an adverse employment
action is actually pretext for discrimination.”
Id. at 285.
Only the former method is at issue in the present case.
13
Direct evidence is “evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and
that bear directly on the contested employment decision.”
v.
Ohio
Cas.
Ins.
Co.,
(quotation marks omitted).
435
F.3d
510,
520
(4th
Warch
Cir.
2006)
If believed, direct evidence “would
prove the existence of a fact . . . without any inference or
presumptions.”
O’Connor v. Consol. Coin Caterers Corp., 56 F.3d
542, 548 (4th Cir. 1995) (quotation marks omitted), rev’d on
other grounds by 517 U.S. 308 (1996).
summary
judgment,
the
evidence
must
To defeat a motion for
show
that
the
employer
announced, admitted, or “otherwise unmistakably indicated” that
an impermissible consideration was a determining factor, or that
discrimination can properly be assumed from the circumstances.
Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th
1982).
Cir.
Here, Plaintiff presents direct evidence that Defendant
discriminated against each removed employee based on pregnancy,
with genuine issues of material fact remaining only in regard to
Tisdale’s discrimination claim.
1.
Summary Judgment is Warranted as
Proctor’s Sex Discrimination Claims
Plaintiff
sets
forth
statements
that
to
Tolliver
Defendant’s
and
agents
made to Tolliver and Proctor immediately following their removal
as direct evidence that the removal resulted solely due to their
pregnancy.
(ECF
No.
25-1,
at
3,
14
6,
7,
11).
For
instance,
Tolliver contends that, when she inquired about the reason for
the removal, Whitfield informed her that he had removed her from
the ARC project due to her pregnancy.
Similarly,
Proctor
asserts
that
(ECF No. 25-5 ¶ 8).
Moore
told
her
that
her
termination from the project resulted “because pregnant women
(ECF No. 25-9 ¶ 8).4
could not work in the FBI file room.”
Although Defendant does not contest its liability to Tolliver
and
Proctor
statements
as
to
their
are
also
or
isolated
sex
relevant
discrimination
to
claims,
Tisdale’s
sex
may
qualify
these
discrimination
claim.
Stray
remarks
not
as
direct
evidence in employment discrimination actions, but derogatory
employer remarks demonstrating “some nexus . . . between the
alleged
discriminatory
statements
and
any
of
the
decisions made by the [employer]” will suffice.
F.3d
at
statement,
549.
its
Courts
temporal
have
considered
proximity
to
the
the
employment
O’Connor, 56
context
adverse
of
the
employment
action, and the status of the person making the statement in
4
In addition to the statements that Tolliver and Proctor
allege Whitfield and Moore made when removing them from the ARC
project, the record is replete with statements by Defendant’s
agents during litigation acknowledging Tolliver and Proctor’s
removal on the basis of pregnancy. (See, e.g., ECF No. 25-3, at
74 (stating that Defendant had removed Tolliver from the project
“because of the pregnancy”); ECF No. 25-4, at 67, 99
(acknowledging that Defendant would not have removed Tolliver
and Proctor if they were not pregnant); ECF No. 25-11, at 42, 46
(explaining that Proctor’s removal occurred “because she was
pregnant” and “due to her pregnancy”)).
15
determining whether such a nexus exists.
Harbour
Recreation
Club,
180
F.3d
See, e.g., Brinkley v.
598,
608
(4th
Cir.
1999)
(finding an 18-month lag between a derogatory statement and the
plaintiff’s eventual termination insufficient to demonstrate a
nexus between the statement and subsequent adverse employment
action), overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003).
Where the derogatory statement bears little relation to the
contested
employment
action
and
is
attenuated
by
time,
a
plaintiff will likely fail to satisfy the nexus requirement.
For example, in O’Connor, the United States Court of Appeals for
the Fourth Circuit considered whether a supervisor’s statements
to a subsequently terminated employee demonstrated such a nexus
in an age-related employment discrimination suit.
F.3d at 549.
O’Connor, 56
According to the plaintiff, his supervisor had
stated that “[i]t’s about time we get some young blood in this
company” and that the plaintiff was “too damn old for this kind
of work” within two weeks of plaintiff’s termination.
Evaluating
these
statements
in
turn,
the
Id.
Fourth
Circuit
found the first statement “innocuous” and merely “a commentary
on the fact that all people age.”
Id.
In addition, the court
emphasized that no nexus existed to link the statement to the
plaintiff’s termination two days later because the supervisor
had made the statement in response to another employee’s comment
16
about his own upcoming 50th birthday, a context unrelated to the
plaintiff’s subsequent termination.
rejected
plaintiff’s
qualified
as
direct
contention
evidence,
Id.
that
noting
The court similarly
the
second
that
the
statement
plaintiff
had
failed to indicate the context in which his supervisor had made
the remark.
Id.
The O’Connor court also seemed skeptical of
the
time
period
two-week
statement
and
that
plaintiff’s
passed
ultimate
between
the
termination.
derogatory
See
also
Loveless v. John’s Ford, Inc., 232 F.App’x 229, 234 (4th Cir.
2007)
(finding
that
a
sufficient
nexus
existed
where
the
plaintiff’s supervisor stated that “he need[ed] younger, more
aggressive Managers” in response to the plaintiff’s inquiry as
to the reason for his termination).
Additionally, to satisfy the nexus requirement in a direct
evidence case, the person making the statement must hold the
status
of
“decisionmaker”
organization.
277
(1989)
the
defendant
employer’s
See Price Waterhouse v. Hopkins, 490 U.S. 228,
(O’Connor,
(“[S]tatements
within
by
J.,
concurring
nondecisionmakers,
in
or
the
judgment)
statements
by
decisionmakers unrelated to the decisional process itself, [do
not] suffice to satisfy the plaintiff’s burden.”), superseded by
statute on other grounds by 42 U.S.C. § 2000e, et seq.; Hill,
354 F.3d at 286-87.
agents
of
an
In Hill, the Fourth Circuit evaluated which
employer
could
constitute
17
a
“decisionmaker,”
reasoning that the term encompasses both agents of the defendant
with formal decisionmaking authority as well as those agents who
possess “principal responsibility” for the employment decision.
See 354 F.3d at 289, 297 (noting that direct supervisors may
qualify as decisionmakers under this analysis).
Here,
the
statements
made
by
Defendant’s
supervisory
employees regarding Tolliver and Proctor both directly reflect
Defendant’s discriminatory attitude and bear on the contested
employment
action.
Carroll,
and
removal
explicitly
underlying
project,
attitude.
Moore
Each
in
In
the
reference
cites
Defendant’s
thus
of
their
decision
directly
addition,
to
reflecting
Tolliver
remarks
to
made
remove
as
them
Defendant’s
Proctor
Whitfield,
and
Tolliver
pregnancy
and
by
Proctor’s
the
from
reason
the
ARC
discriminatory
have
presented
statements that bear on the adverse employment action because
the remarks share a nexus with that action.5
5
Unlike in O’Connor,
In the present action, Plaintiff assumes, and Defendant
does not contest, that the employees’ removal from the ARC
project – a long-term, full-time placement – constituted adverse
employment action.
An adverse employment action certainly
includes hiring, firing, and demoting employees, but it also
encompasses decreases in compensation and reassignment with
substantially different responsibilities or opportunities for
promotion.
See James v. Booz-Allen & Hamilton, Inc., 368 F.3d
371, 375-76 (4th Cir. 2004).
In the absence of any defense
opposition on this ground, the employees’ removal from the ARC
project, without immediate reassignment to another long-term,
full-time placement, appears to satisfy this threshold. Indeed,
the
removed
employees
earned
no
wages
unless
Defendant
reassigned them, thus they suffered a decrease in compensation.
18
where the court found an insufficient nexus because plaintiff
failed to connect the age-related statements to his termination,
the
remarks
here
occurred
during
conversations
that
directly
addressed the reasons for Tolliver and Proctor’s removal from
the
project
Tolliver
and
and
that
Proctor
statements
that
employment
action
is
immediately
have
thus
provided
intricately
and
have
followed
linked
demonstrated
between the statements and that action.
forth
statements
made
by
persons
a
their
context
with
the
temporal
removal.
for
the
adverse
proximity
They have also set
likely
to
qualify
as
“decisionmakers,” as Defendant’s CFO (Whitfield) and Operations
Manager (Moore) made the statements on which they principally
rely.
(ECF No. 25-1, at 3, 5).
Defendant wholly fails to challenge Plaintiff’s allegations
as to Tolliver and Proctor in its opposition, neither denying
that the statements occurred nor arguing that the statements do
not reflect a discriminatory attitude or lack a nexus to the
contested employment action.
Therefore, because Plaintiff has
presented direct evidence that Defendant discriminated against
Tolliver and Proctor due to pregnancy, and Defendant has not
created any genuine issue of material fact to the contrary,
summary judgment for Plaintiff on this ground is warranted.6
6
In its memorandum in support of its motion for partial
summary judgment, Plaintiff preemptively asserts arguments to
19
2.
Defendant Creates Material Issues of Fact Sufficient
to Preclude Summary Judgment as to Tisdale’s Sex
Discrimination Claim
Plaintiff
Defendant
asserts
removed
pregnancy.
that
Tisdale
direct
from
the
(ECF No. 25-1, at 6, 11).
evidence
ARC
establishes
project
due
to
that
her
In addition to presenting
Tisdale’s claim in light of the direct evidence of Tolliver and
Proctor’s
unlawful
removal
due
to
pregnancy,
Plaintiff
specifically notes that Moore told Tisdale her removal occurred
“because [she] was pregnant” and “for fairness.”
¶ 12).7
(ECF No. 25-8
In response, Defendant contends that a legitimate, non-
counter any contention by Defendant that a legitimate reason
existed for Tolliver and Proctor’s removal from the ARC project.
(ECF No. 25-1, at 11-18).
For instance, Plaintiff presents
evidence to dispute any potential claim that Tolliver and
Proctor’s pregnancy prevented them from adequately performing
their jobs. (Id. at 11-12). Plaintiff additionally sets forth
two responses to any defense claim that Defendant removed the
employees because the FBI prohibited pregnant women from working
on the ARC project.
(Id. at 16-18).
First, Plaintiff alleges
that, contrary to assertions by Defendant’s agents, depositions
from FBI personnel demonstrate that the FBI did not have such a
policy.
(Id. at 16).
Second, assuming that such a policy
exists, Plaintiff then cites case law holding that customer
preferences alone are insufficient to justify the discrimination
that occurred in the present case. (Id. at 17). The court need
not reach these arguments, and any factual dispute created
thereby, however, because Defendant does not oppose Plaintiff’s
motion seeking summary judgment as to liability regarding
Tolliver and Proctor on any ground.
7
As noted in regard to Tolliver and Proctor’s claims above,
the record contains numerous statements taken during the
litigation in which certain of Defendant’s agents acknowledge
that Tisdale’s pregnancy drove her removal from the ARC project.
(See, e.g., ECF No. 25-4, at 87 (noting that Defendant removed
20
discriminatory reason, rather than Tisdale’s pregnancy, drove
her removal.
that
(ECF No. 30-1, at 3).
Defendant
throughout
her
excuse
her
pregnancy,
from
Citing Tisdale’s request
lifting
Defendant
and
climbing
maintains
that
duties
Tisdale’s
removal stemmed solely from this request for light duty, which
Defendant asserts that it had not previously provided to other
employees on the ARC project.
As
an
initial
matter,
(Id.).
the
remark
set
forth
constitutes direct evidence of sex discrimination.
by
Tisdale
Similar to
the conclusion above regarding the statements about Tolliver and
Proctor’s removal, the remark here directly references Tisdale’s
pregnancy as the basis for the contested employment action, thus
evincing a discriminatory attitude.
In addition, Tisdale has
presented evidence demonstrating a nexus between the statement
and the adverse employment action.
The remark occurred during a
conversation about the reason for Tisdale’s removal from the ARC
project just after that removal occurred, thereby providing both
a context for the statements that is directly linked to the
adverse action and a temporal connection between the statements
and that action.
Furthermore, Defendant’s Operations Manager
(Moore) – a person likely to qualify as a “decisionmaker” within
Defendant’s organization – made the derogatory statement.
(ECF
Tisdale because the FBI would not allow pregnant women to work
on the ARC project); ECF No. 25-11, at 46 (same)).
21
No.
25-1,
statements
at
5,
6).
occurred
discriminatory
Defendant
nor
attitude
employment decision.
argues
or
neither
that
lack
contests
that
these
do
not
evince
nexus
a
they
a
to
the
contested
Tisdale thus succeeds in presenting direct
evidence of pregnancy discrimination.
Generally, after an employee presents direct evidence of
discrimination
based
on
pregnancy,
an
employer
may
not
then
avoid liability by demonstrating that an additional motivating
factor for the adverse employment action is legitimate and nondiscriminatory.
See 42 U.S.C. § 2003-2(m) (defining an unlawful
employment practice to include those adverse actions with “sex .
. . [as] a motivating factor . . . even though other factors
also motivated the practice”); Hill, 354 F.3d at 284 (explaining
that § 2003-2(m) “eliminate[s] the employer’s ability to escape
liability in Title VII mixed-motive cases by proving that it
would
have
made
the
same
discriminatory motivation”).
decision
in
the
absence
of
the
This rule is inapplicable to the
present action, however, because Defendant maintains that the
sole factor motivating its decision to remove Tisdale from the
ARC project was her inability to perform the requisite climbing
and lifting functions of her position.
(ECF No. 30-1, at 3).
It is well-established that a pregnant employee’s inability
to
perform
required
job
functions
may
justify
an
employer’s
lawful decision to take adverse employment action against the
22
employee.
See, e.g., Daugherty v. Genesis Health Ventures of
Salisbury,
Inc.,
316
F.Supp.2d
262,
263-65
(D.Md.
2004)
(concluding that a nursing home’s refusal to provide light duty
to a pregnant nursing assistant who could no longer perform the
lifting requirements of her job did not violate the PDA because
the
nursing
home
also
refused
to
accommodate
non-pregnant
employees requesting similar lifting restrictions).
Title VII,
as amended by the PDA, does not require an employer “to treat
disability arising from pregnancy more favorably than it treats
other forms of temporary disability.”
Id. at 265.
Indeed, only
where the employer accommodates – or refuses to accommodate –
its pregnant employees in a discriminatory manner will courts
conclude that employment discrimination may have occurred.
See
42 U.S.C. § 2000e(k); Ward v. Acme Paper & Supply Co., 751
F.Supp.2d 801, 805 (D. Md. 2010) (denying an employer’s motion
for summary judgment in a pregnancy discrimination action where
the employer refused to provide the plaintiff with a 10-month
light
duty
assignment
because
the
plaintiff
had
submitted
evidence that her employer had previously accommodated shortterm
light
duty
assignments
for
non-pregnant
employees);
cf.
Daugherty, 316 F.Supp.2d at 264 (denying a pregnant plaintiff’s
motion for summary judgment because she had failed to provide
evidence
demonstrating
that
her
employer
23
had
permitted
non-
pregnant employees in similar positions to perform light duty
work when requested).
In the present case, similar to the defendant in Daugherty,
Defendant
contends
that
Tisdale’s
inability
to
perform
the
lifting and climbing functions of her position, rather than her
pregnancy itself, drove its decision to remove Tisdale from the
ARC project.
Tisdale’s
prevented
position.
numerous
(ECF No. 30-1, at 3).
lifting
her
and
from
(Id.).
climbing
performing
the
According to Defendant,
restrictions
required
effectively
functions
of
the
To support this contention, Defendant offers
employee
depositions
which
discuss
the
lifting
climbing requirements of positions on the ARC project.
and
(E.g.,
ECF No. 25-4, at 68; ECF No. 25-1, at 34-37).
Defendant further maintains that it could not place Tisdale
on light duty while she worked on the ARC project.
1,
at
3).
Defendant
specifically
cites
(ECF No. 30-
Elaine
Wright’s
deposition for this proposition, in which Wright stated that she
was
not
aware
of
ARC
project
supervisors
previously
accommodating any employees with light duty positions.
30-4, at 73-74).
(ECF No.
Thus, like the defendant in Daugherty who did
not provide light duty positions for any employees, Defendant
here maintains that it did not provide such positions to any ARC
project
employees.
asserts
that
the
(ECF
PDA
does
No.
not
30-1,
at
require
24
3).
it
to
Defendant
treat
then
pregnant
employees more favorably than non-pregnant employees by creating
light duty positions for pregnant employees.
(Id. at 3-4).
In
combination, the arguments and evidence cited above by Defendant
serve to demonstrate a legitimate, non-discriminatory reason for
Tisdale’s removal, thereby creating genuine issues of material
fact
regarding
Defendant’s
liability
as
to
her
sex
discrimination claim.
Presumably
judgment
in
in
its
an
favor
effort
is
to
demonstrate
nonetheless
that
warranted,
summary
Plaintiff
replies by asserting that Defendant’s refusal to provide light
duty is “disingenuous” for two reasons.
First,
Plaintiff
interrogatories
that
positions
to
(ECF
31-1,
No.
Defendant’s
hollow”
contends
two
at
to
Leslie
the
FBI,
Defendant
previously
11-12).
refusal
and
had
non-pregnant
because
Defendant
it
that
(ECF No. 31, at 2).
employees
Second,
provide
a
Payne,
had
stated
provided
on
the
duty
chief
that
in
light
ARC
Plaintiff
light
the
admitted
position
the
FBI
duty
project.
insists
liaison
its
that
“rings
between
would
have
accommodated Defendant’s request to place Tisdale in a light
duty position.
These
request
(ECF No. 25-7 ¶ 16).
reasons
for
ultimately
summary
fail
judgment
because
to
support
they
merely
Plaintiff’s
highlight
additional issues of material fact that render summary judgment
on
the
issue
of
Tisdale’s
sex
discrimination
25
inappropriate.
Indeed, as in
after
both
light
duty
Ward, where the court denied summary judgment
parties
presented
positions,
here
conflicting
Plaintiff
evidence
and
regarding
Defendant
submitted contradictory evidence on the same issue.
have
First, both
parties present conflicting evidence regarding Defendant’s prior
use of light duty positions on the ARC project.
Notably, while
Tisdale offers Defendant’s interrogatories admitting that it had
provided
temporary
light
duty
positions
to
non-pregnant
employees unable to lift and climb, Defendant offers Wright’s
deposition that Defendant had not previously accommodated such
positions, thereby preventing it from accommodating Tisdale’s
long-term light duty request.
Second,
Plaintiff
and
Defendant
present
conflicting
evidence regarding the feasibility of light duty positions on
the ARC project.
Indeed, the factual discrepancy above between
Defendant’s interrogatories and Wright’s deposition underscores
the issue at the heart of Ward – whether provision of temporary
light
duty
positions
ultimately
rendered
it
feasible
for
Defendant to provide a long-term light duty position to Tisdale.
Additionally, although Plaintiff emphasizes that FBI personnel
would have allowed Defendant to accommodate Tisdale and that
Tisdale continued to perform her job satisfactorily even with
restrictions,
supervisors
Defendant
cites
highlighting
the
deposition
necessity
26
testimony
of
the
from
its
lifting
and
climbing functions to Tisdale’s position.
dispute
thus
climbing
exists
on
ARC
regarding
project
the
A material factual
necessity
positions,
of
further
lifting
placing
and
the
feasibility of light duty positions on the ARC project in issue.
Due to these material disputes of fact regarding Defendant’s
reason
for
removing
Tisdale,
Plaintiff’s
motion
for
summary
judgment as to liability on Tisdale’s sex discrimination claim
is denied.
B.
Failure to Mitigate
In addition to moving for summary judgment as to the sex
discrimination claims, Plaintiff moves for summary judgment as
to Defendant’s affirmative defense that the removed employees
failed to mitigate their damages, claiming that this mitigation
defense fails as a matter of law.
(ECF No. 25-1, at 19).
Defendant, in response, opposes the motion for summary judgment
as to all three removed employees and submits a cross-motion for
summary
efforts.
judgment
in
its
favor
as
to
Tisdale’s
mitigation
(ECF No. 30-1, at 1-2).
Title
VII
claimants
have
a
statutory
duty
to
mitigate
damages resulting from their employers’ discriminatory adverse
employment actions.
42 U.S.C. §2000e-5(g) (“[A]mounts earnable
with reasonable diligence by the person or persons discriminated
against
shall
allowable.”).
operate
This
to
duty
reduce
requires
27
the
a
back
claimant
pay
to
otherwise
act
in
a
reasonably
diligent
manner
employment
substantially
when
“seeking
equivalent
to
claimant] was discharged.”
and
that
accepting
from
which
new
[the
Brady v. Thurston Motor Lines, Inc.,
753 F.2d 1269, 1273 (4th Cir. 1985).
The defendant bears the
burden of proving that a claimant has failed to mitigate damages
stemming from a Title VII violation.
F.3d 820, 838 (4th Cir. 2001).
have
set
forth
numerous
Miller v. AT&T Corp., 250
In the present case, both parties
arguments
specific
to
employee when addressing the mitigation issue.
each
removed
For that reason,
in considering the parties’ briefs on the issue, the court has
evaluated each employee’s mitigation efforts in turn, beginning
with Tolliver.
1.
Defendant Fails to Create Material Issues of Fact
Regarding Tolliver’s Efforts to Mitigate Damages
Plaintiff
sets
regarding
the
Plaintiff
begins
posted
resumes
forth
both
sufficiency
by
of
noting
online,
factual
and
Tolliver’s
that
Tolliver
applied
for
legal
arguments
mitigation
efforts.
“networked
heavily,
numerous
positions,
and
attended job fairs” after Defendant removed her from the ARC
project.
(ECF
No.
25-5
¶
23).
Unable
to
locate
similar
employment despite these efforts, Tolliver, who is fluent in
Swahili, accepted a job translating for prisoners at Guantanamo
Bay
during
and
immediately
after
her
pregnancy
because
her
family “could not afford for [her] to be without paid work.”
28
(Id.
at
¶¶
16-17,
19,
21).
Plaintiff
asserts
that
these
actions, in combination, constitute sufficient damage mitigation
despite
Tolliver’s
failure
to
meet
with
Defendant
regarding
potential reassignment.
An employee who has suffered an unlawful adverse employment
action may act with reasonable diligence, thereby sufficiently
mitigating
resumes,
damages,
and
by
applying
reviewing
for
job
available
advertisements,
positions.
posting
See,
e.g.,
Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253 (10th Cir.
2005)
(upholding
rejecting
a
applied
for
a
jury
verdict
failure-to-mitigate
multiple
in
plaintiff’s
defense
jobs,
where
reviewed
favor
and
plaintiff
had
classified
job
advertisements, and visited the state’s job services center on a
monthly basis); Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th
Cir. 1990) (holding an employee’s submission of applications and
resumes
sufficient
employment
claimant
to
discrimination
must
seek
mitigate
damages
action).
comparable
in
an
Additionally,
employment
age-based
although
with
a
reasonable
diligence, the claimant need not “go into another line of work.”
Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982).
Where a
claimant does obtain employment in another field, even if only
part-time, that claimant “satisfies [her] obligation to mitigate
damages absent a showing by [the employer] that this action was
not in good faith.”
See Xiao-Yue Gu v. Hughes STX Corp., 127
29
F.Supp.2d 751, 760 (D.Md. 2001) (rejecting a failure-to-mitigate
defense
where
Massachusetts
the
to
plaintiff
obtain
two
had
relocated
part-time
from
Maryland
positions
in
to
another
field).
Here, Tolliver’s efforts satisfy this standard.
Tolliver
asserts that she posted resumes and submitted applications, like
the claimants in Praseuth and Spulak, as well as participated in
job
fairs
and
other
networking
activities.
In
addition,
although not legally required to accept the translation job at
Guantanamo
Bay
during
and
immediately
after
her
pregnancy,
Tolliver did so because she “could not afford . . . to be
without paid work.”
(ECF No. 25-5 ¶ 17).
Thus, similar to the
plaintiff in Xiao-Yue Gu who accepted work in another field and
traveled to obtain that work, Tolliver traveled from Maryland to
Guantanamo Bay to accept employment in a field entirely separate
from her long-term position on the ARC project.
Defendant does
not contend that Tolliver took this translation work in bad
faith.
Rather, Defendant first attempts to downplay this evidence
by
contending
that
Tolliver’s
declaration
is
insufficient
because Plaintiff must present physical evidence of Tolliver’s
job search.
(ECF No. 30-1, at 2-3).
This argument flatly
ignores Federal Rule of Civil Procedure 56(c), which explicitly
provides
that
a
moving
party
may
30
cite
to
affidavits
and
declarations
when
moving
for
summary
judgment,
thereby
implicitly recognizing that courts may consider such documents
in evaluating the merits of such a motion.
See also Baney Corp.
v. Agilysys NV, LLC, 773 F.Supp.2d 593, 600 (D.Md. 2011) (“To
defeat a motion for summary judgment, the nonmoving party must
come forward with affidavits or other similar evidence to show
that
a
genuine
issue
of
material
fact
exists.”
(citing
Matshshita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986))).
Defendant then attempts to argue that Tolliver’s failure to
meet
with
constitutes
Defendant
failure
regarding
to
her
mitigate
removal
damages,
and
reassignment
despite
Carroll’s
concession that no available positions existed for Tolliver at
the
scheduled
meeting
time.
Specifically,
Defendant
alleges
that this failure “foreclosed [Defendant’s] ability” to place
her
in
other
Defendant
available
further
positions.
maintains
that
(ECF
if
No.
Tolliver
30-1,
had
at
8).
contacted
Defendant after her pregnancy, “it is likely” that Defendant
could have placed her in an open position (Id.).
offers
no
evidence
to
support
Plaintiff responds in two ways.
either
of
these
Defendant
assertions.
Plaintiff first contends that
Tolliver’s duty to mitigate did not require her to accept any
potential offer of alternative employment from Defendant while
her position on the ARC project remained open. (ECF No. 25-3, at
31
21).
Additionally, Plaintiff emphasizes that Carroll admitted
Defendant
had
no
alternative
Tolliver following her removal.
As
an
initial
matter,
employment
opportunities
for
Id.
Plaintiff’s
assertion
that
“[a]n
employer’s offer of alternative employment will not cut-off back
pay when the claimant’s position remains available” misconstrues
the law regarding a claimant’s duty to mitigate damages.
No. 25-1, at 21).8
United
States
proposition.
(ECF
Plaintiff cites language from a well-known
Supreme
Court
opinion
in
setting
forth
this
In a footnote to Ford Motor Co. v. EEOC, the Court
parenthetically
described
Relations
decision
Board
the
as
holding
follows:
of
a
“offer
National
of
Labor
reinstatement
ineffective when discharged employee offered a different job,
though former position still existed.”
458 U.S. at 231 n.16
(emphasis added) (citing Wonder Markets, Inc., 236 N.L.R.B. 787,
787 (1978), enforced 598 F.2d 666 (1st Cir. 1979), overruled on
other grounds by N.L.R.B. v. Wright Line, 662 F.2d 899 (1st Cir.
1981)).
A careful reading of the
Ford Motor
and
Wonder Markets
opinions suggests a more reasoned interpretation of the Court’s
statement than that proffered by Plaintiff.
The
Ford Motor
Court provided the Wonder Markets citation, along with several
8
Plaintiff makes this argument in regard to Proctor and
Tisdale as well.
For the reasons discussed below, it fails as
to all of the removed employees.
32
others, to support the now-axiomatic proposition that a claimant
need not accept a demotion or demeaning position in order to
mitigate damages.
Markets
thus
Id. at 231.
seems
to
The Court’s reference to Wonder
illustrate
that
a
position
differing
markedly from the employee’s former position may qualify as a
demotion or demeaning position – one that a claimant need not
accept.
The Wonder Markets opinion confirms this conclusion,
revealing that an administrative law judge had reasoned that a
non-supervisory position was not “substantially equivalent” to a
supervisory position before rejecting the employer’s proposed
reinstatement offer.
236 N.L.R.B. at 787.
The Ford Motor Co.
and Wonder Markets opinions thus fail to support Plaintiff’s
proposed rule of law.
Indeed, other cases suggest that a claimant’s failure to
accept alternative employment from the discriminating employer
can
constitute
failure
to
mitigate
damages.
See,
e.g.,
Anastasio v. Schering Corp., 838 F.2d 701, 708 (3rd Cir. 1988)
(noting that an employer could demonstrate failure to mitigate
by
presenting
evidence
that
the
claimant
declined
a
substantially equivalent position offered by the employer).
Plaintiff
nonetheless
succeeds
in
demonstrating
that
Tolliver’s failure to meet with Defendant regarding potential
reassignment does not preclude summary judgment in Plaintiff’s
favor.
Only Plaintiff presents evidence regarding the impact of
33
Tolliver’s failure to attend that meeting, and this evidence
indicates that Defendant could not have reassigned Tolliver to
another position even if she had attended the meeting.
(See ECF
No. 25-3, at 64 (stating that Defendant had no positions “in
mind” for Tolliver at the scheduled meeting time)).
Defendant’s
memorandum in opposition to Plaintiff’s motion baldly asserts
that Defendant could have provided a position for Tolliver if
she had attended this meeting or contacted Defendant following
her pregnancy, but Defendant offers no evidentiary support for
these propositions.
judgment
in
the
(ECF No. 30-1, at 3).
movant’s
favor,
the
To avoid summary
non-moving
party
“must
present evidentiary matter showing that there is a genuine issue
of material fact that is worth bringing to trial.”
Alan
Wright,
Arthur
R.
Miller,
and
Mary
Kay
10A Charles
Kane,
Federal
Practice & Procedure § 1327 (3d ed. 2010); see also Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (explaining that “the
nonmoving party . . . cannot create a genuine issue of material
fact through mere speculation”).
such
evidence
here,
instead
Defendant fails to present
only
presenting
conclusory
statements in its brief to support these assertions.
judgment
in
Plaintiff’s
favor
as
efforts is therefore warranted.
34
to
Tolliver’s
Summary
mitigation
2.
Defendant Creates Genuine Issues of Material Fact
Regarding Proctor’s Mitigation Efforts
Plaintiff next contends that Proctor sufficiently mitigated
her
damages
by
posting
resumes
on
two
leading
job-search
websites and by accepting temporary one-day assignments offered
by Defendant because “she needed to have an income and no better
paying job was available.”
responds
in
two
ways.
(ECF No. 25-1, at 9).
First,
as
with
Defendant
Tolliver,
Defendant
contends that Proctor’s declaration documenting her job-search
efforts
is
insufficient
because
Plaintiff
physical evidence of Proctor’s job search.
7).
did
not
submit
(ECF No. 30-1, at
This argument fails for the same reason discussed above.
Second, Defendant asserts that Proctor rejected both temporary
and long-term placements that it offered following her removal
from
the
ARC
project,
supporting
affidavit from its President and CEO.
this
assertion
with
an
(Id. at 6; ECF No. 30-7
¶¶ 4-5).
Although a claimant who suffered adverse employment action
in regard to a full-time position may demonstrate that she has
mitigated damages by applying for open positions and accepting
part-time employment, the duty to mitigate does not require a
claimant to accept a demotion or demeaning position.
See Ford
Motor Co., 458 U.S. at 231; Newhouse v. McCormick & Co., 110
F.3d 635, 641 (8th Cir. 1997) (finding that a plaintiff mitigated
35
his damages by applying for comparable positions, seeking help
from a job service, and accepting the only job – a part-time
position – offered to him after the defendant unlawfully refused
to hire him based on age).
The statutory duty to mitigate,
however, precludes the claimant from refusing a substantially
equivalent
job
offer,
another employer.
whether
offered
by
the
defendant
or
Ford Motor Co., 458 U.S. at 232; see also
Newhouse, 110 F.3d at 641; Anastasio v. Schering Corp., 838 F.2d
at
708.
Whether
a
position
qualifies
as
substantially
equivalent is generally a question for the trier of fact.
See
Parrish v. Immanuel Medical Center, 92 F.3d 727, 735 (8th Cir.
1996) (evaluating a trial verdict as to damage mitigation and
explaining
position
that
“reasonable
offered
.
.
.
was
minds
not
could
conclude
substantially
that
the
equivalent”).
Here, similar to the plaintiff in Newhouse, Plaintiff presents
evidence
that
Proctor
posted
resumes
and
accepted
temporary
employment offered by Defendant in order to mitigate the damages
stemming
from
her
unlawful
removal
from
the
ARC
project.
Defendant, however, creates two material issues of fact that
preclude summary judgment in Plaintiff’s favor as to Proctor’s
mitigation efforts.
First, Defendant’s assertion that Proctor actually declined
many of the temporary assignments it offered to her creates an
issue of material fact rendering summary judgment inappropriate.
36
Plaintiff
contends
that
“a
temporary
assignment
is
not
substantially equivalent to a full-time placement” as a matter
of law, thus suggesting that Proctor’s duty to mitigate did not
obligate her to accept these positions even if offered.
No. 31, at 5).
to
support
persuasive
this
case
(ECF
Plaintiff, however, presents no legal authority
proposition,
law
and
reasoning
to
this
the
court
has
contrary.
identified
See,
e.g.,
Miles-Hickman v. David Powers Homes, Inc., 613 F.Supp.2d 872,
888 (S.D.Tex. 2009) (eschewing a “per se” distinction between
“temporary” and “permanent” employment and instead focusing on
the relative opportunities, compensation, job responsibilities,
and employment conditions of the two positions in determining
whether they were substantially equivalent) (citing Palasota v.
Haggar
Clothing
Therefore,
Proctor
Co.,
Plaintiff
rejected
499
cannot
temporary
F.3d
474,
avoid
486
(5th
Defendant’s
positions
simply
by
Cir.
2007)).
evidence
that
claiming
that
temporary positions are not substantially equivalent to fulltime positions as a matter of law.9
9
Plaintiff also attempts to avoid Defendant’s evidence by
contending that Defendant must prove the amount of income that
the claimant “might have . . . earned had the claimant’s efforts
been diligent.”
(ECF No. 31-1, at 4 (citing Chace v. Champion
Spark Plug Co., 732 F.Supp. 605, 610 (D.Md. 1990)).
As an
initial matter, this assertion – even if true - neglects to
consider that Defendant has not presented its own motion for
summary judgment as to Proctor’s mitigation efforts, but has
instead merely opposed Plaintiff’s motion.
To avoid summary
judgment, the non-moving party is only required to present
37
Ultimately,
a
factual
dispute
temporary positions offered to Proctor.
exists
regarding
the
Proctor claims that she
accepted two one-day assignments from Defendant that paid less
than her position on the ARC project, potentially suggesting
that these positions, although accepted, were not substantially
equivalent to the ARC project position.
ECF No. 25-1, at 20).
(ECF No. 25-9 ¶¶ 10-11;
Carroll, however, maintains that Proctor
declined numerous temporary positions – duration unspecified –
offered by Defendant, indicating that Proctor may have rejected
positions
qualifying
as
(ECF No. 30-7 ¶¶ 4-5).
substantially
equivalent
employment.
The resulting contradiction creates a
material dispute of fact, which Plaintiff neither addresses nor
explains in its reply.
evidence demonstrating the existence of a material dispute of
fact. In regard to Proctor’s mitigation efforts, Defendant has
done so. To the extent that Plaintiff raises the same argument
as to Defendant’s cross-motion regarding Tisdale’s mitigation
efforts, Plaintiff appears to misstate the law.
In Chace, the
defendant presented evidence that the claimant turned down
substantially equivalent employment, and the court considered
this fact in calculating the claimant’s front pay award.
732
F.Supp. at 610.
In computing that award, however, the court
noted that the defendant had failed to provide it with evidence
regarding the amount by which this failure to mitigate should
reduce damages. The court then refused to reduce the amount of
the award despite the claimant’s failure to mitigate.
Chace
thus indicates that the party charged with calculating damages
must quantify the amount by which a claimant failed to mitigate
damages after a defendant successfully defends on that issue.
It does not, as Plaintiff contends, indicate that a defendant
must quantify this amount to satisfy its initial burden.
38
Additionally, Defendant’s evidence that Proctor failed to
accept a long-term placement at the Pentagon creates a second
issue of material fact.
Unlike in Newhouse, where no evidence
existed
the
to
suggest
that
plaintiff
turned
down
long-term
employment substantially equivalent to the former position, such
evidence exists in the present action.
Plaintiff’s memorandum
in support of its motion and its reply fail to mention this
proposed long-term placement and to explain why, if offered,
that
placement
employment.
would
not
constitute
substantially
equivalent
As a result, Defendant identifies another material
issue of fact regarding Proctor’s mitigation efforts.
Summary
judgment in Plaintiff’s favor on this issue is therefore not
warranted.
3.
Genuine Issues of Material Fact Exist Regarding
Tisdale’s Mitigation Efforts, Thus Precluding
Summary Judgment in Either Party’s Favor
Finally,
Plaintiff
moves
for
summary
judgment
as
to
Tisdale’s effort to mitigate damages, and Defendant both opposes
this motion and submits its own cross-motion as to Tisdale’s
failure to mitigate damages.
The court will examine Plaintiff’s
motion, in light of Defendant’s opposition, before turning to
the merits of Defendant’s cross-motion.
Plaintiff contends that Tisdale engaged in extensive jobsearch efforts following her termination from the ARC project in
July
2009.
(ECF
No.
25-1,
at
39
20-21).
Citing
Tisdale’s
declaration
as
well
as
copies
of
Tisdale’s
e-mail
records,
Plaintiff notes that Tisdale networked and applied for more than
100 positions after her removal.
25-1, at 20).
Tisdale
(ECF No. 25-8 ¶ 20; ECF No.
In addition, Plaintiff sets forth evidence that
enrolled
in
classes
through
an
online
university
to
enhance her chances of obtaining employment and later accepted a
long-term placement from Defendant at the Pentagon in October
2009, although Tisdale claimed that the position paid less than
the ARC project.
(ECF No. 25-8 ¶ 17).
Finding that this
position was “not available after [she] gave birth,” Tisdale
reinitiated her job search efforts by applying for other open
positions.
(Id.
at
plaintiff
discussed
¶
19).
Thus,
above,
who
similar
to
sufficiently
the
Newhouse
mitigated
his
damages by applying for numerous open positions and accepting
the only job offer he received, Plaintiff here maintains that
Tisdale’s mitigation efforts were sufficient to warrant summary
judgment in Plaintiff’s favor.
Defendant opposes Plaintiff’s motion using two arguments,
each
creating
material
issues
judgment in Plaintiff’s favor.
offered
Tisdale
multiple
of
fact
matter
of
law,
preclude
summary
First, Defendant asserts that it
temporary
unspecified, many of which she declined.
ECF No. 30-7 ¶ 6).
that
assignments,
duration
(ECF No. 30-1, at 4;
Here, Plaintiff again contends that, as a
temporary
employment
40
is
not
substantially
equivalent to permanent employment, but this argument fails for
the reasons previously discussed.
Plaintiff then contends that
the court should grant summary judgment in its favor despite the
evidence of these temporary offers because Defendant did not
submit additional evidence regarding “how many assignments were
available, . . . the job duties for the assignments, the hours
of employment or the pay and benefits for the assignments.”
(ECF No. 31, at 7).
This argument, however, misunderstands the
nonmovant’s burden on a motion for summary judgment.10
“The
burden on the nonmoving party is not a heavy one; the nonmoving
party simply is required to show specific facts, as opposed to
general
allegations,
trial.”
here
has
that
present
a
genuine
issue
Wright, Miller, and Kane, supra, at § 2727.
set
forth
facts
showing
temporary offers of employment.
that
Tisdale
worthy
of
Defendant
declined
its
In so doing, Defendant has
created a material issue of fact as to Tisdale’s mitigation
efforts by suggesting that she may have turned down offers of
substantially
equivalent
employment
–
a
suggestion
to
which
Plaintiff does not respond.11
10
The same argument does carry force as to Defendant’s
cross-motion for summary judgment, discussed below.
In that
instance, Defendant is not only the movant, but also the party
who would bear the burden of persuasion at trial.
11
Although Plaintiff does not set forth facts in its briefs
regarding these temporary employment offers, its own record
highlights the factual disputes that render this issue improper
41
Defendant additionally contends that Tisdale’s failure to
request reinstatement on the Pentagon project after she gave
birth constitutes “abandonment” of that position and failure to
mitigate damages.
(ECF No. 30-1, at 4-5).
To support this
contention, Defendant offers an affidavit from Carroll, stating
that Tisdale did not contact Defendant and, if she had done so,
Defendant would have placed her in “her prior or equivalent
position” at the Pentagon.
(ECF No. 30-7 ¶ 11).
The Fourth
Circuit has previously concluded that a claimant’s failure to
remain
in
substantially
equivalent
employment,
“risks or even insures a loss of back pay.”
once
secured,
Brady, 753 F.2d at
1273.
Plaintiff does not dispute this general principle, instead
setting
forth
factual
discrepancies
about
the
nature
of
the
position and its alleged availability, further rendering summary
judgment improper.12
Plaintiff first suggests that Tisdale’s
for summary judgment.
Indeed, while Tisdale’s declaration
states that she received only two temporary assignments lasting
one day, Plaintiff’s reply to Defendant’s opposition and crossmotion cites an exhibit stating that Defendant had offered
Tisdale at least four temporary assignments, duration unknown,
all of which she appeared to reject. (ECF No. 25-5, at 2; ECF
No. 31-2, Ex. A). This contradictory evidence set forth by
Plaintiff
thus
underscores
the
material
factual
dispute
regarding Tisdale’s mitigation efforts.
12
Plaintiff does contend that the duty to mitigate did not
require Tisdale to accept any other employment with Defendant
while her position at the ARC project remained open.
As
explained previously in regard to Tolliver’s mitigation efforts,
42
position at the Pentagon was not substantially equivalent to her
ARC
project
position
because
the
ARC
project
position
paid
$16/hour with benefits, while the Pentagon project paid only
$17.24/hour without benefits.
at 1).
(ECF No. 31, at 7; ECF No. 31-2,
Although Defendant presents a declaration stating that
the Pentagon position paid “a higher rate than [Tisdale’s] FBI
assignment,”
and
that
Tisdale
denied
the
offered
benefits,
neither party mentions the Pentagon hourly wage with benefits
included
or
compares
the
positions’
responsibilities, or employment conditions.
Therefore,
material
issues
of
fact
opportunities,
(ECF No. 30-7 ¶ 7).
exist
regarding
whether
Tisdale’s placement at the Pentagon was substantially equivalent
to
her
ARC
project
position.
See
Parrish,
92
F.3d
at
735
(suggesting that triers of fact should resolve issues regarding
whether
two
positions
are
substantially
equivalent
in
an
employment discrimination action).
Even
assuming
equivalent,
material
that
the
factual
positions
disputes
were
remain
substantially
regarding
the
availability of Tisdale’s position at the Pentagon following her
pregnancy.
evidence
(ECF No. 31, at 6).
that
Tisdale
could
Indeed, while Defendant offers
have
obtained
an
“equivalent
position” at the Pentagon after giving birth, Tisdale asserts in
this argument relies on
therefore unpersuasive.
a
misstatement
43
of
the
law
and
is
her declaration that Defendant had recently entered bankruptcy
and that such a position “was not available” at that time.
No. 30-7, at 11; ECF No. 25-8 ¶ 19).
fact
that
Defendant
its
own
contends
evidence
that
here
Apparently ignoring the
derives
Tisdale’s
(ECF
from
declaration
an
affidavit,
regarding
the
position’s unavailability is insufficient to create a factual
dispute on this issue.
As previously discussed, however, the
Federal Rules of Civil Procedure permit courts to consider both
affidavits
and
Fed.R.Civ.Proc.
declarations
56(c).
on
Because
summary
both
judgment.
parties
have
See
set
forth
evidence disputing the position’s availability, an additional
dispute of material fact exists to preclude summary judgment in
Plaintiff’s favor.
Defendant’s
cross-motion
for
summary
judgment
is
also
denied because Defendant wholly fails to satisfy its burden of
proving Tisdale’s failure to mitigate.
Disregarding completely
that Tisdale applied to more than 100 open positions and engaged
in
networking
activities,
Defendant
raises
only
the
two
arguments examined above when requesting that the court grant
summary judgment in its favor as to Tisdale’s damage mitigation
efforts.
of
For the reasons previously explained, numerous issues
material
Additionally,
fact
in
exist
arguing
in
relation
to
these
that
Tisdale
failed
to
arguments.
mitigate
by
rejecting its temporary employment offers, Defendant makes no
44
attempt to demonstrate that the offers constituted substantially
equivalent employment that Tisdale had to accept in order to
mitigate her damages.
Evidence of such offers may suffice where
Defendant merely opposes Plaintiff’s motion because the court
must construe the facts presented in the light most favorable to
the nonmoving party.
Defendant, however, ultimately bears the
burden of proof on this issue at trial, and, on cross-motion for
partial summary judgment, a mere statement that Proctor rejected
an unspecified number of temporary employment positions fails to
satisfy this burden. Therefore, summary judgment in Defendant’s
favor as to Tisdale’s mitigation efforts is improper.
IV.
Conclusion
For the foregoing reasons, Plaintiff’s motion for partial
summary judgment will be granted in part and denied in part,
while Defendant’s cross-motion for partial summary judgment will
be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
45
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