Grigsby v. AKAL Security, Inc.
Filing
49
ORDER granting 40 motion for summary judgment. Signed on 6/21/18 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
HILARIA GRIGSBY,
Plaintiff,
v.
AKAL SECURITY, INC.,
Defendant.
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No. 5:17-CV-06048-DGK
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This action arises out of Plaintiff Hilaria Grigsby’s (“Grigsby”) employment with
Defendant AKAL Security, Inc. (“AKAL”). Grigsby lost her position at AKAL after AKAL
eliminated several positions in an effort to reduce costs. Grigsby claims AKAL discriminated
against her based on her gender, race, and national origin when it selected her position to
eliminate. Grigsby also claims she was paid less than a Caucasian male employee for the same
job. Grigsby sued AKAL for violations of Title VII of the Civil Rights Act of 1964 as amended,
42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Equal Pay Act, 29 U.S.C. § 206(d).
Now before the Court is Defendant’s motion for summary judgment (Doc. 40). For the
reasons set forth below, the Court GRANTS Defendant’s motion.
Undisputed Material Facts1
AKAL provides security-screening services at the Kansas City International Airport
(“MCI”) through a contract with the Transportation Security Administration (“TSA”). Prior to
AKAL, FirstLine Transportation Security (“FirstLine”) had the contract with MCI.
1
The Court excluded asserted facts that were immaterial to the resolution of the pending motion, asserted facts that
were not properly supported by admissible evidence, legal conclusions, and argument presented as an assertion of
fact. See Fed. R. Civ. P. 56(c); L.R. 56.1(a). The Court has included reasonable inferences from material facts not
in dispute and proposed facts the opposing party has not controverted properly.
Grigsby is a black female of Dominican nationality. She worked for FirstLine from
November 2002 to February 2015 in various positions. Effective February 1, 2015, she was
hired by AKAL as a Terminal Manager. Jacob Sledd (“Sledd”), a Caucasian male, was also
hired by AKAL in February 2015 as a Terminal Manager.
AKAL took over the MCI contract effective March 1, 2015. The contract requires three
essential positions be staffed at all times: Program Manager, Deputy Program Manager, and
Training Manager. The Program Manager is the highest-ranking employee under the MCI
contract and is responsible for all operations and management aspects of the contract. Under the
MCI contract, AKAL has two groups of employees, operations and program management.
Operations employees include various levels of security officers who work in the airport
terminals and are responsible for passenger security screening work. Program management
employees include the Program Manager, Deputy Program Manager, Training Manager,
Terminal Managers, and other administrative and management positions. The office consisted of
22 people, 13 were female and at least two were African American. Grigsby notes that she was
the only black female manager in the program management office. Creating and filling program
management positions was left to AKAL’s discretion after filling the three essential positions
stated in the MCI contract.
The operations employees’ salaries are billable to the MCI contract and, in effect, are
paid by the TSA because they had been negotiated under the MCI contract. The program
management employees’ salaries are billable to the MCI contract up to the amount negotiated for
under the MCI contract. Relevant to this case, the number of program management staff and
their salaries had exceeded what had been negotiated for under the MCI contract, which meant
that the pay for each program management employee had become an expense to AKAL.
2
When AKAL took over the MCI contract, Robert Ray (“Ray”) was the Program
Manager.
In May 2015, David Welliver (“Welliver”) was hired as the Deputy Program
Manager. Welliver’s salary was set through a negotiation with AKAL’s president. Initially
Welliver requested $90,000, but after a series of counter-offers, the two decided on $87,500 per
year. The Deputy Program Manager before Welliver, a male, earned $80,000 in the position.
Ray created the position Director of Airport Operations, reporting to the Deputy Program
Manager. Grigsby, who had been working as a Terminal Manager, applied for and received the
Director of Airport Operations position. Ray offered Grigsby $65,000 per year for the position,
and Grigsby responded that she was “expecting more” but she did not request a specific salary or
attempt to negotiate a higher salary. Ray told Grigsby that the position was capped at $65,000
per year.
In January 2016, Ray left his position and Welliver was promoted to Program Manager.
The MCI contract required the Deputy Program Manager position to be filled, and so Ray and
Welliver2 chose Grigsby as the interim Deputy Program Manager. In February 2016, Grigsby
applied for and received the permanent Deputy Program Manager position. Initially Grigsby had
reservations about applying for the position but after conversations with Ray and Welliver, she
applied. Grigsby interviewed for the position with Welliver, Brian Beckwith (“Beckwith”), and
Angela Robeson. Welliver stated he believed Grigsby was the best qualified person for the job
and recommended her for the position.
Before she received the job offer from Beckwith, Welliver told Grigsby that she should
think about a salary to ask for. He stated “You need to think about what you’re going to ask for
the position should you get it, you need to justify what you ask for the position should you get it,
2
The parties dispute whether it was Ray who offered Grigsby the interim position or Welliver, or whether it was a
joint decision. Resolving this conflict is immaterial to resolving the issues of this motion.
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and make sure you don’t overprice yourself.”
Plaintiff decided to ask for $85,000 after
considering her salaries as a Terminal Manager and the Director of Airport Operations. She did
not consult any industry publications to determine the market rate for the position. She did not
know what Welliver had made in that position, nor the budgeted salary range. Grigsby stated
that Welliver’s advice not to “overprice herself” affected the salary she requested because she
did not want to ask for more than what she should, however she also stated that she didn’t feel
Welliver’s advice was problematic or concerning.
Beckwith called Grigsby to tell her she had been selected for the Deputy Program
Manager position and asked what her salary requirements were. Grigsby asked for $85,000 and
Beckwith accepted that offer. Grigsby earned $2,500 less per year as the Deputy Program
Manager than Welliver had earned in that position.
With Grigsby in the Deputy Program Manager position, the Director of Airport
Operations position was vacant. Sledd applied for and was selected as the Director of Airport
Operations, effective April 10, 2016. Both Grigsby and Welliver interviewed Sledd for the
position and both felt he was the most qualified person for the position. Sledd negotiated his
salary for the Director of Airport Operations position with Welliver. Initially, Sledd asked for
$75,000, but through negotiations his salary was set at $73,000. Sledd’s salary was $8,000 more
than Grigsby’s salary was when she was the Director of Airport Operations.
Beginning in December 2016, Welliver began discussions with his supervisors about cost
cutting measures within his department. While there was some focus on cost cutting in 2015, the
conversations now turned to reducing payroll costs.
Welliver announced to the senior
management team of the MCI contract that he may have to eliminate or merge some positions
within the program management office.
4
Welliver was asked to eliminate eight people, however he selected four positions he
could eliminate or combine with other positions.
Welliver submitted his proposal to his
supervisors, who approved the plan and presented it to the AKAL board of directors. Welliver’s
proposal included converting a full-time logistics specialist position into a half-time job,
resulting in a cost savings of $21,500. As a result, the individual in this position, a male, worked
part-time as a logistics specialist and part-time as a supervisor in the operations group.
Welliver’s proposal also included eliminating a trainer position, resulting in a cost savings of
$52,000 per year. The individual in this position, a female, had been recently transferred from
the operations group and because of Welliver’s decision, she was moved back to her operations
position. Welliver also proposed terminating one of the human resources specialists. This
individual, a female, would have been terminated for performance reasons but Welliver’s
proposal included not backfilling her position. Instead, Welliver assigned her duties to other
staff. Eliminating this position resulted in a cost savings of $41,600 per year. Welliver gave
small pay raises to those taking on the additional work, $1,000 to $1,500 per year. Lastly,
Welliver’s proposal included combining the Director of Airport Operations and the Deputy
Program Manager positions because the positions were nearly the same but with different titles.
Welliver decided to terminate Grigsby’s position because Grigsby was paid more than Sledd,
resulting in the largest cost savings.
Grigsby’s employment was terminated on January 26, 2017. Welliver met with Grigsby
and gave her a letter that was prepared by AKAL’s Director of Human Resources. The letter
stated “Effective today, January 26, 2017, Akal Security releases you from employment as your
position is being eliminated as part of ongoing restricting efforts.”
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Sledd took over substantially all of Grigsby’s Deputy Program Manager duties in
addition to his Director of Airport Operations duties. On January 29, 2017, Sledd’s title was
changed to Deputy Program Manager because that position was one of the positions required
under the MCI contract. In his role as Deputy Program Manager, Sledd was paid $75,400,
$2,400 more than what he was paid in his role as Director of Airport Operations, and $9,600 less
than what Grigsby was paid in that position.
At the time Grigsby was terminated AKAL had an open Terminal Manager position that
was ultimately filled by Gabe Murphy (“Murphy”). Murphy worked for FirstLine from August
2004 through March 2015, as a security officer at MCI. In March 2015, a few weeks after
AKAL took over the MCI contract, Murphy became the interim and then permanent logistics
specialist. In May or June 2016, Murphy began filling in one day a week as a Terminal
Manager. In September 2016, Murphy became an interim Terminal Manager on a full-time
basis.
Ultimately, Murphy applied for and received the open Terminal Manager position,
effective February 2017.
At the meeting on January 26, 2017, where Grigsby’s employment was terminated, she
asked Welliver if she could apply for the open Terminal Manager position. Welliver responded,
“We don’t demote.” Welliver testified that he did not consider the Terminal Manager position a
viable option for Grigsby because Murphy was in the position on an interim basis and he had
applied for the permanent position. Welliver later explained that he believed the Terminal
Manager position would be inappropriate for Grigsby because the Terminal Managers report to
Sledd, and for the last two years, Grigsby had been Sledd’s supervisor. Grigsby also asked if
there were any other positions available within the company and Welliver responded, “I’m not
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aware of it but you can submit your resume.” While she is eligible for rehire with AKAL,
Grigsby has not applied for any positions since she was terminated.
Grigsby complains that her termination was unfair for several reasons.
First, she
complains that her position wasn’t really eliminated because Sledd ultimately was given her job
title. Next, she complains that Welliver should have offered her the option of taking a pay cut
instead of terminating her. Further, she states that she was treated unfairly because her resume
was already on file with the company but Welliver told her she needed to submit a resume in
order to be considered for any other available positions with the company.
Grigsby filed a five-count lawsuit alleging (1) race, national origin, and gender
discrimination in violation of Title VII (Counts I, III, IV); (2) race discrimination in violation of
42 U.S.C. § 1981 (Count II); and (3) violations of the Equal Pay Act (Count V).
Summary Judgment Standard
A moving party is entitled to summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed R. Civ. P. 56(a). A party who moves for summary judgment bears the burden of
showing there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). A court must view the facts in light most favorable to the nonmoving party and
allow the nonmoving party to benefit from all reasonable inferences to be drawn from the
evidence. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986).
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Discussion
I.
Grigsby’s discrimination claims fail as a matter of law.
Grigsby claims her termination from AKAL was discriminatory on the bases of her race
in violation of Title VII and 42 U.S.C. § 1981 (Counts I and II) and her national origin and
gender in violation of Title VII (Counts III and IV). See Am. Compl. (Doc. 20).
The elements of discrimination under Title VII are: (1) membership in a protected class;
(2) job performance that meets the employer’s legitimate expectations; (3) adverse employment
action; and (4) similarly situated employee outside the protected class was treated differently.
Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 891 (8th Cir. 2005). “The elements of claims
alleging disparate treatment on the basis of race under Title VII and intentional employment
discrimination on the basis of race under § 1981 are identical.” Wright v. St. Vincent Health Sys.,
730 F.3d 732, 739 (8th Cir. 2013).
Grigsby does not allege any direct evidence of discrimination, thus the Court must
analyze her claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Singletary, 423 F.3d at 891. Under that framework, the plaintiff first must
establish a prima facie case of race, national origin, and sex discrimination. Tolen v. Ashcroft,
377 F.3d 879, 882 (8th Cir. 2004). The defendant then must produce “a legitimate, nondiscriminatory reason for the adverse employment action.” Id. If the defendant meets this
burden, the burden shifts back to the plaintiff to show that the articulated reason was a pretext for
discrimination.
Id. “To survive summary judgment, an employee must both discredit the
employer’s articulated reason and demonstrate the circumstances permit a reasonable inference
of discriminatory animus.” Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th
Cir. 2014) (internal quotations omitted).
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For purposes of this motion, AKAL does not dispute that Grigsby could establish a prima
facie case of discrimination, but AKAL argues Grigsby’s discrimination claims fail as a matter
of law because she cannot show that AKAL’s reason for terminating her was false or a pretext
for discrimination.
The Court finds AKAL has established a legitimate, nondiscriminatory reason for the
decision to terminate Grigsby’s employment. The undisputed facts evidence that Grigsby was
terminated as part of a cost cutting effort that affected four positions, her job was nearly identical
to Sledd’s position, and she was paid more than Sledd. There are no facts that would allow a fact
finder to find that AKAL’s reason for terminating Grigsby’s position was false, or that would
allow a fact finder to infer that the real reason Grigsby was terminated was because of her
gender, race, or national origin.
Grigsby argues there is evidence demonstrating the decision to terminate her was a
pretext for discrimination, the cost cutting reason AKAL gave for terminating her was untrue,
and that discrimination more likely motivated AKAL’s decision to terminate her. First, Grigsby
states that Welliver lied to her, other AKAL employees, and AKAL contractors when he said her
position had been eliminated. She points out that the position of Deputy Program Manager was
not eliminated because Sledd was given the job title just two days after her termination. The
Court finds while AKAL could have done a better job at communicating that Grigsby’s own
position had been eliminated and not the Deputy Program Manager role, a fact finder could not
find Welliver’s phrasing amounts to a falsehood and that the real reason for terminating Grigsby
was discriminatory.
Second, Grigsby argues the reason given for her termination was false because Welliver
lied to her when he said there were no managerial positions were open, when in fact, the
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Terminal Manager position, later filled by Murphy, was open. The undisputed facts do not
support Grigsby’s argument. Grigsby testified in her deposition that she asked Welliver if she
could apply for the Terminal Manager position and that he responded, “We don’t demote,” not
that she asked if there were any managerial positions open. Further, she testified that she asked
Welliver if there were any open positions and Welliver responded “I’m not aware of it but you
can submit your resume.” Thus, the Court cannot find there are any disputed facts that AKAL’s
reason for terminating Grigsby was false.
Third, Grigsby argues AKAL acted with discriminatory animus because Welliver did not
ask Grigsby if she would be willing to accept less money for the combined Deputy Program
Manager-Director of Airport Operations position. Grigsby states that she told Welliver that she
would be willing to do the job for less money. Grigsby does not cite to any law that requires a
company to first offer an employee a pay cut prior to terminating them for cost cutting reasons.
Grigsby made $12,000 more than Sledd, and their roles were nearly identical, making Welliver’s
business decision to terminate Grigsby over Sledd a reasonable one. See McDonnel Douglas
Corp., 63 F.3d at 781 (“the employment-discrimination laws have not vested in the federal courts
the authority to sit as super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that those judgments involve
intentional discrimination.”).
Fourth, Grigsby argues Welliver’s budget cuts only negatively affected the pay of female
employees. Grigsby supports her argument by pointing to the human resources specialist who
was terminated for performance reasons and the trainer who was transferred to her previous
position and as a result, lost a few thousand dollars in salary. Grigsby also points to the parttimer logistics coordinator and states that the individual in that role did not want his salary
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reduced, so he agreed to take the job in addition to his other supervisory job. Grigsby’s
argument is unavailing. First, it ignores that the human resources position was not backfilled.
Whether the individual in that position was terminated as part of cost cutting or for performance
reasons is irrelevant that the position remained vacant and the duties were assigned to other
employees. Her argument also ignores that three female associates actually received raises when
they took on the human resources work. Thus, there are no undisputed facts that would allow a
fact finder to infer AKAL’s real reason for terminating Grigsby was discriminatory.
Finally, Grigsby argues the pay differential between her salary and her male counterparts
is evidence of discrimination. Grigsby states that in her role as Deputy Program Manager she
was paid $2,500 (three percent) less than Welliver was paid in that position, and that Sledd was
paid $8,000 more than she was in the Director of Airport Operations role. Grigsby argues that
Welliver was solely responsible in the decision to pay Sledd $8,000 more, told her not to
“overprice” herself when negotiating her salary for the Deputy Program Manager position, and
the decision to terminate her. As discussed more fully below in § II, these facts do not allow a
fact finder to conclude that AKAL’s reason for terminating Grigsby was false or a pretext for
discrimination.
The pay difference between Grigsby and Welliver in the Deputy Program
Manager role is irrelevant because different decision makers were involved, Grigsby’s pay was
set with Beckwith and Welliver’s pay was set with AKAL’s president. Further, Welliver set
Sledd’s pay in the combined Deputy Project Manager and Director of Airport Operations at
$9,600 less than what Grigsby was making in the Deputy Project Manager role only. The
undisputed facts do not support a finding that AKAL’s stated reason for terminating Grigsby was
false or a pretext for discrimination.
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Considering all of Grigsby’s arguments there are no disputed facts that would permit a
fact finder to conclude that AKAL’s reason for eliminating Grigsby’s employment was not for
cost cutting purposes but rather based on Grigsby’s gender, race, or national origin. Considering
Grigsby’s arguments collectively, they are slightly more persuasive; however, collectively all the
undisputed facts still fall short of what is necessary to refute that AKAL’s reason for terminating
Grigsby was for a non-discriminatory reason.
Accordingly, AKAL’s motion for summary
judgment on Counts I, II, III, and IV is granted.
II.
Grigsby’s equal pay claim fails as a matter of law.
Grigsby alleges two violations of the Equal Pay Act (“EPA”). First, Grigsby claims the
$2,500 discrepancy between her and Welliver’s salaries as the Deputy Program Manager was
discriminatory. Second, Grigsby claims the $8,000 discrepancy between her and Sledd’s salaries
as the Director of Airport Operations was discriminatory. See Am. Compl. (Count V).
Under the EPA, “a plaintiff must establish a prima facie case by showing that the
defendant paid male workers more than she was paid for equal work in jobs that required equal
skill, effort, and responsibility and work performed under similar conditions.” Taylor v. White,
321 F.3d 710, 715 (8th Cir. 2002). If the plaintiff makes this showing, the burden shifts to the
defendant to prove one of the EPA’s four affirmative defenses applies. Horner v. Mary Institute,
613 F.2d 706, 713 (8th Cir. 1980). “The last of the statutory affirmative defenses set forth in the
EPA is a catch-all provision that excuses pay discrepancies ‘based on any other factor other than
sex.’” Taylor, 321 F.3d at 715. “[N]egotiations leading to a comparator’s higher salary, or a
demand for a specific salary, may establish a valid ‘factor other than sex’ defense to an unequal
pay claim.” Ewald v. Royal Norwegian Embassy, 82 F. Supp. 3d 871, 947 (D. Minn. 2014)
(citing Horner, 613 F.2d at 714 (holding that the differential in salary between plaintiff and her
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comparator was the result of negotiations, which is sufficient to rebut plaintiff’s prima facie case
of pay discrimination)).
For purposes of this motion, AKAL does not dispute that Grigsby could establish a prima
facie case under the EPA, but argues Grigsby’s claims fail because the undisputed facts
demonstrate the salary discrepancies are the result of negotiations, and thus, a factor other than
gender.
A.
The difference in Grigsby’s and Welliver’s salaries as Deputy Program
Manager was set through salary negotiations.
The undisputed facts state the individual who held the Deputy Program Manager before
Welliver made $80,000, Welliver earned $87,500, and Grigsby earned $85,000 in the Deputy
Program Manager role. Welliver’s salary was set through negotiations with AKAL’s president,
and Grigsby’s salary was set when Beckwith accepted her suggested salary.
Given these
undisputed facts, Welliver and Grigsby’s salaries were set through negotiations, a factor other
than gender.
B.
The difference in Grigsby’s and Sledd’s salaries as Director of Airport
Operations was set through salary negotiations and Sledd being the most
qualified candidate.
The undisputed facts state Ray hired Grigsby for the Director of Airport Operations job
and set her salary at $65,000. While Grigsby stated she “was expecting more,” she did not ask
for a higher salary or attempt to negotiate. Both Grigsby and Welliver interviewed Sledd for the
Director of Airport Operations position and both agreed he was the most qualified person for the
position. Sledd negotiated his salary with Welliver and after a back and forth, they agreed to
$73,000. Grigsby stated when Sledd accepted the position that the salary was capped at $65,000.
However, Welliver told Grigsby he could justify the higher salary to his supervisors because
Sledd was the most qualified candidate. See Horner, 613 F.2d at 714 (holding the employer
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rebutted any possible prima facie case by proving the male’s “experience and ability made him
the best person available for the job and because a higher salary was necessary to hire him. The
differential was based on a factor other than sex.”). Here, there are no facts which would allow a
fact finder to find that AKAL’s decision to pay Sledd more than Grigsby in the Director of
Airport Operations position was based on gender because his salary was set through negotiations
and he was the best available person for the job, necessitating a higher pay.
Conclusion
Defendant’s motion for summary judgment (Doc. 40) is GRANTED.
IT IS SO ORDERED.
Date: June 21, 2018
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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