Pinkard v. Hilti, Inc. et al
Filing
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OPINION AND ORDER by Judge John E Dowdell Hilti's Motion for Summary Judgment and Brief in Support (Doc. 52) is granted. ; striking/terminating deadline(s)/Hearing(s); granting 52 Motion for Summary Judgment (Re: 11 Amended Complaint ) (SAS, Chambers)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KHESA PINKARD,
Plaintiff,
vs.
HILTI, INC. a Domestic For Profit
Business Corporation, and
HILTI OF AMERICA, INC., a Foreign
For Profit Business Corporation,
Defendants.
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Case No. 11-CV-454-JED-PJC
OPINION AND ORDER
The Court has for its consideration defendants’ Motion for Summary Judgment and Brief
in Support (Doc. 52), which is at issue (see Docs. 65, plaintiff’s response in opposition and 69,
defendants’ reply brief). The defendants, Hilti, Inc. and Hilti of America, Inc. (collectively,
“Hilti”), seek summary judgment as to all of plaintiff, Khesa Pinkard’s, remaining claims.1
BACKGROUND
This is an employment-related action removed from state court. On December 20, 2011,
plaintiff filed a Second Amended Complaint (Doc. 11) in this Court, alleging claims against Hilti
under Title VII of the Civil Rights Act for failure to promote, retaliation, and pay disparity, as
well as a claim under the Equal Pay Act.2
Pinkard was hired by Hilti in 2006. On February 1, 2008, she moved to Tulsa to continue
her employment with Hilti in the position of Regional Manager – Customer Service. In this
1
Plaintiff has abandoned her claim for disparate impact under Title VII of the Civil Rights Act
(see Doc. 65, at 1 n.2), and dismissed her putative class action claims (see Doc. 45).
2
In her summary judgment briefing, Pinkard abandoned any contention that her claims were
based upon race (see Doc. 65).
position, Pinkard worked in a call center environment and supervised sales agents. Pinkard’s
supervisor was Christy Graybill, who was the Division Manager, Customer Service.
The
relationship between Pinkard and Graybill was not without conflict. On August 24, 2010,
Graybill placed Pinkard on a corrective action plan based upon Graybill’s perception that
Pinkard needed improvement in her communication with co-workers and completing assigned
tasks promptly. On December 1, 2010, Pinkard was taken off the corrective action plan, as
Graybill felt that she had taken steps to correct the subjects at issue. Pinkard remained a
Regional Manager – Customer Service until July 11, 2011, when she was awarded a job as an
outside sales Regional Manager in Seattle, Washington.
Pinkard consistently sought to advance her career at Hilti. However, Pinkard claims that
Hilti created roadblocks which inhibited her advancement. Specifically, Pinkard alleges that,
during her time as a Regional Manager – Customer Service in Tulsa, Hilti failed to consider her
for a promotion to a Director of Rentals position in 2010, and failed to award her a promotion to
a Diamond Pro Contractor Sales Manager position, for which she interviewed on January 11,
2011. In both instances, Pinkard asserts that men were awarded the jobs for discriminatory
reasons. Pinkard also claims she was paid less than a male Regional Manager – Customer
Service purely on the basis of gender. Finally, Pinkard claims Defendants retaliated against her
for complaints she made to Human Resources Representative, Melissa Harris, in August of 2010,
about her supervisor, Graybill. Pinkard brought this lawsuit on May 12, 2011, seeking redress
for these alleged discriminatory practices.
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate “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.
2
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, the courts
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477
at 251-52. The evidence of the non-movant is to be taken as true, and all justifiable inferences
are to be drawn in non-movant’s favor. Anderson, 477 U.S. at 255; see Ribeau v. Katt, 681 F.3d
1190, 1194 (10th Cir. 2012). “Credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment. . . .” Anderson, 477 U.S. at 255. “[A]t the summary
judgment stage the judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249.
“When the moving party has carried its burden under Rule 56[a], its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (citations
omitted). When the record, taken as a whole, “could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Id. (quotations omitted). “The mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there
must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. In essence, the inquiry for the Court is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at 250. In its review, the Court construes the record in
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the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d
1249, 1251 (10th Cir. 1998).
ANALYSIS
A. Title VII Failure to Promote Claim
Pinkard’s Title VII failure to promote claim is based upon Hilti’s actions with respect to
two positions: a Director of Rentals position allegedly awarded to Dennis Hoops and a position
as Diamond Pro Contractor Sales Manager, which was awarded to Kristopher Cleveland.
Pinkard’s failure to promote claim requires a showing of three elements:
“(1) she
belongs to a protected class; (2) she applied for an available position for which she was qualified;
[and] (3) she ‘was rejected under circumstances which give rise to an inference of unlawful
discrimination.’” Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (quoting Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Absent direct evidence, Pinkard must
prove discriminatory intent through the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Simms v. Oklahoma ex rel. Dep't of Mental
Health & Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999). Under the McDonnell
Douglas burden-shifting framework, a plaintiff is only required to raise an inference of
discrimination, not dispel the non-discriminatory reasons subsequently proffered by the
defendant. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000). At
the prima facie stage, the Plaintiff’s burden is ‘not onerous,’ which is evidenced by the ‘small
amount of proof necessary to create an inference of discrimination.’”
Orr v. City of
Albuquerque, 417 F.3d 1144, 1149 (quoting EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1318
(10th Cir. 1992)).
Once a plaintiff can establish a prima facie case of discrimination or
retaliation, the burden shifts directly to defendant to “articulate some legitimate,
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nondiscriminatory reason” for the adverse employment actions which are at issue. Chavez v.
Thomas & Betts Corp., 396 F.3d 1088, 1104 (10th Cir. 2005). Once a defendant articulates its
legitimate reasons for the adverse employment actions, the burden then shifts back to the
plaintiff to show that the defendant’s proffered reason for the adverse employment actions was
pretext for discrimination.
“A Plaintiff can demonstrate pretext by showing weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's reasons for its
action, which a reasonable fact finder could rationally find unworthy of credence.” Chavez, 396
F.3d at 1104 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997)). If a
plaintiff presents evidence that the defendant’s proffered reason for the employment decision
was pretextual, i.e., unworthy of belief, plaintiff can withstand a summary judgment motion and
is entitled to go to trial. Kendrick v. Penske Transport Servs, Inc., 220 F.3d 1220, 1230 (10th
Cir. 2000).
Dennis Hoops and the Director of Rentals Position
Pinkard claims that, despite her interest, Hilti failed to consider her for a promotion to a
“Director of Rentals” position which was allegedly given to Dennis Hoops. Hilti argues that the
change relating to Hoops was not a promotion at all, and that the position she describes as
“Director of Rentals” was never an open position for which Pinkard could have applied. Hilti
has provided an affidavit demonstrating that Hoops was actually demoted from his former
position of Director, Alternative Channels (for which he was hired in 2006) to Director, Key
Accounts for Rentals and Authorized Distributors (the position plaintiff refers to as “Director of
Rentals”). (See Docs. 69-5 and 65, at 15). Marci Bonham, a female, was promoted over Hoops
and became Director of Rentals and Authorized Distributors (formerly called Director,
5
Alternative Channels). (Cf. Doc. 65, at 14-15 with Doc. 69, at 3 and Doc. 69-5).3 In other
words, Mr. Hoops became a Director as to only a subpart of the former job he occupied and Ms.
Bonham became his supervisor.
Pinkard has failed to make a showing that these legitimate business justifications
provided by Hilti are pretextual. Pinkard points to the fact that the position Hoops assumed,
Director, Key Accounts for Rentals and Authorized Distributors, was advertised on
Ladders.com, a job search website, as an available position within the company. Hilti submitted
evidence explaining that the position was listed online because, at the time, Hilti was considering
replacing Hoops altogether, but ultimately decided merely to demote him. Pinkard has not put
forth any evidence to suggest this explanation is unworthy of belief. Summary judgment is
therefore appropriate as to this portion of Pinkard’s failure to promote claim.
Kris Cleveland and the Diamond Pro Contractor Position
Pinkard asserts that Hilti promoted Kristopher Cleveland over her into the position of
Diamond Pro Contractor Sales Manager because Mr. Cleveland was male. Pinkard asserts that
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Pinkard attempts to create a dispute of fact by alleging that Marci Bonham previously
occupied the “Director of Rentals” position which was given to Hoops. (Doc. 65-7). Her
declaration to this effect is insufficient to create a genuine dispute of fact in light of the evidence
submitted by Hilti on this point. Hilti provided the declaration of Charles Martorello (Doc. 69-5)
and supporting documentation which shows that Bonham was hired by Hilti to take over for
Hoops on March 15, 2010, as Director, Rentals and Authorized Distributors (see id.). Hoops
then assumed the role of Director, Key Accounts for Rentals and Authorized Distributors. Thus,
it would have been impossible for Bonham to have occupied the position as Pinkard suggests and
she has not created a genuine issue of fact regarding Hilti’s actions as to Hoops. Universal
Money Ctrs., Inc. v. AT&T Co., 22 F.3d 1527, 1529 (10th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (“An issue of material fact is ‘genuine’ if a
‘reasonable jury could return a verdict for the nonmoving party.’”). Pinkard’s emails
demonstrate that Hoops’ position was not listed on Ladders.com until October 2010 (see Doc.
65-8), some seven months after Hoops’ demotion. It is clear from the documents provided that
Hoops was already occupying the position which Hilti listed, but Hilti chose not to make a
personnel change with respect to Hoops at that time. Thus, no promotion was possible for
Pinkard at the time she sought it.
6
Cleveland was pre-selected for this position by Cary Evert, Chief Executive Officer of Hilti, Inc.
Hilti has responded with the affidavits of Cary Evert and the hiring manager, Andrew Hunt, who
interviewed Pinkard. Evert states in his affidavit that, while he had suggested Cleveland for the
position, the hiring decision was entirely Hunt’s.
Hunt’s affidavit states that he selected
Cleveland for the position “based upon his superior knowledge, superior experience, technical
expertise and aptitude.” (Doc. 52-5). Hilti argues that these affidavits demonstrate that Pinkard
lacked essential qualifications for the position or, at a minimum, show a legitimate business
justification for the hiring of Cleveland. Hilti also relies on the interview feedback provided to
Pinkard shortly after her interview, which states that Hunt was concerned that Pinkard needed
more technical expertise and market information before she would be appropriate for the
position. (Id.).
Even assuming Pinkard was qualified for the Diamond Pro Contractor position and thus
made a prima facie showing, the evidence submitted by Hilti establishes a legitimate business
justification for the selection of Cleveland.
Pinkard attempts to demonstrate that Hilti’s
justifications are pretext primarily through her own assertions that she was more qualified for the
position. “However, an employee's ‘own opinions about h[er] ... qualifications [do not] give rise
to a material factual dispute’” and are insufficient to show pretext. Simms, 165 F.3d at 1329
(quoting Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir. 1996)).4 Pinkard’s argument that
Cleveland was pre-selected for the position is likewise insufficient to demonstrate pretext.
4
Pinkard also attempts to show pretext by stating that, during her interview with Hunt, “she was
not even asked questions that would demonstrate she was deficient in [technical expertise].”
(Doc. 65, at 19). This would certainly be powerful evidence of pretext, if correct. However, the
evidence which Pinkard cites in support of this assertion – namely, her deposition testimony –
does not reflect the statement in her brief. (See Doc. 65-1, at 103-04). In the cited portion of her
deposition testimony, Pinkard never states that Hunt did not ask questions regarding technical
expertise; indeed, there is no mention of the questions asked during her interview with Hunt.
(See id.).
7
Assuming Cleveland had been pre-selected for the position, that type of pre-selection would
work to the detriment of all other applicants, male and female alike. Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 271 (4th Cir. 2005). Such a pre-selection argument therefore
“amounts to a complaint that the application process was a meaningless formality, which ‘might
be inconsiderate or unfair, but it does not [imply] ... discrimination.’” Espinoza v. Coca-Cola
Enterprises, Inc., 167 F. App'x 743, 745 (10th Cir. 2006) (quoting Jaramillo v. Colo. Judicial
Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005)). Given Pinkard’s failure to make a showing of
pretext, Hilti is entitled to summary judgment as to her failure to promote claim.
B. Retaliation
Pinkard’s retaliation claim is based upon Pinkard’s complaint to human resources
representative, Melissa Harris, regarding Pinkard’s supervisor, Christy Graybill.
Pinkard
complained to Harris about Graybill’s alleged treatment of her, and Pinkard claims that, as a
result of her complaint, she was placed on a corrective action plan (“CAP”). Pinkard further
alleges that the CAP constitutes a materially adverse action under Title VII because she was
prevented from promoting for the duration of the CAP, August 24, 2010, to December 1, 2010.
For reasons stated below, the Court finds that a dispute of fact exists as to whether the CAP was
a materially adverse action, but the Court finds Pinkard has failed to make a prima facie showing
as to the remaining elements of her retaliation claim.
Under Title VII, a plaintiff must establish the following elements of a retaliation claim:
“(1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee
would have found the challenged action materially adverse, and (3) that a causal connection
existed between the protected activity and the materially adverse action.” Argo v. Blue Cross and
8
Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Hilti claims that Pinkard’s
claim fails on all three elements.
As to the first element, Pinkard has not submitted evidence which demonstrates that she
ever complained of gender discrimination prior to being placed on the CAP. In her response
brief, Pinkard states that she “complained that she felt Graybill treated her and the other females
in the department differently than the males” and that these complaints “occurred on August 18,
2010 and August 20, 2010 in in-person meetings.” (Doc. 65, at 15). Once again, the email
evidence cited by Pinkard – specifically, exhibits 18 and 22 – do not support her contention. The
cited emails make no mention of disparate treatment of females. Instead, the emails suggest that
Pinkard thought Graybill – a female – treated everyone poorly, not just females.
As to the second element, a material dispute of fact exists as to whether the CAP
constitutes an adverse action.
An “adverse employment action” is one that “affect[s]
employment or alter[s] the conditions of the workplace.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 62 (2006). Generally, it involves changes in the terms of employment, such
as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or
a decision causing significant change in benefits,” and usually “inflicts direct economic harm.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–62 (1998).
An action is considered
materially adverse if it “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington, 548 U.S. at 68 (internal quotation omitted).
Pinkard testified that, in her experience, being placed on a CAP constitutes a de facto
barrier to promotion within Hilti. Christy Graybill, Pinkard’s supervisor during the relevant
time, submitted an affidavit. Graybill’s affidavit states that Pinkard was not prevented from
seeking a promotion while she was on the CAP. A reasonable employee would likely be
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dissuaded from making a complaint if they expected that it would result in the inability to
promote. As such, a factual dispute exists as to whether the CAP was an adverse action.
Finally, Pinkard has failed to demonstrate the third element for a retaliation claim. There
is an insufficient causal nexus between the CAP and Pinkard’s alleged reporting of
discrimination. First, there is no evidence identified by Pinkard that would demonstrate that
Graybill was aware that Pinkard had complained to Harris about her conduct or any other
problem she encountered with Hilti.5 Second, the CAP itself states several legitimate nonretaliatory justifications for her placement on the CAP.
For example, it discusses several
instances of problematic behavior in the month of August leading up to the issuance of the CAP.
(Doc. 65-20). Pinkard has not put forth any evidence which would create a dispute of fact as to
these justifications for placing her on the CAP. Accordingly, she has not demonstrated a causal
connection between her complaint to Harris and the CAP.6
Summary judgment is granted with respect to Pinkard’s retaliation claim.
C. Equal Pay Act Claim
5
Pinkard’s email (Doc. 65-22) which states that Pinkard heard from Becky More, who heard
from her “Division Manager,” that Harris’ investigation into Pinkard’s complaint was stopped by
the “C[ustomer] S[ervice] Leadership team” is hearsay within hearsay, and is insufficient to
establish Graybill’s knowledge of Pinkard’s complaint. See Thomas v. Int'l Bus. Machines, 48
F.3d 478, 485 (10th Cir. 1995) (“For example, hearsay testimony that would be inadmissible at
trial may not be included in an affidavit to defeat summary judgment because “[a] third party's
description of [a witness'] supposed testimony is not suitable grist for the summary judgment
mill.”). Notably, Pinkard did not submit any affidavit testimony from More to support her
allegations regarding the investigation.
6
Even if Pinkard had made the required prima facie showing, which the Court has found she
failed to do, the justifications stated in the CAP are non-discriminatory and Pinkard made no
adequate showing of pretext.
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Pinkard claims that Hilti discriminated against her by paying her less based on gender in
violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”).7
To prove a violation of the EPA, Pinkard must show that (1) she was performing work
which was substantially equal to that of employees of the opposite sex, taking into consideration
the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the
work was performed were basically the same; and (3) employees of the opposite sex were paid
more under such circumstances. Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311 (10th
Cir. 2006). Were Pinkard to meet this requirement, the burden of persuasion would shift to Hilti
to prove that the wage disparity was justified by one of four permissible reasons. Id. (citing
Tidwell v. Fort Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993)). “These reasons are: (1) a
seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; (4)
a disparity based on any factor other than sex.” Id. (citing 29 U.S.C. § 206(d)(1)). Where an
employer seeks summary judgment as to an EPA claim, “they must produce sufficient evidence
such that no rational jury could conclude but that the proffered reasons actually motivated the
wage disparity of which the plaintiff complains.” Mickelson, 460 F.3d at 1312 (internal citation
omitted).
The undisputed facts show that Pinkard was paid more than all of her fellow Regional
Managers – Customer Service, save Edward Miller.8 Hilti argues that there was a factor (or
factors, as the case may be) other than sex which justified paying Miller more. He had over 25
7
The EPA is part of the Fair Labor Standards Act (“FLSA”). Pinkard’s Second Amended
Complaint (Doc. 11) purports to allege claims under both the EPA (§ 206(d)) and the FLSA (§
216(b)), which are duplicative. (See id., Third and Fifth Claims for Relief).
8
In her response brief, Pinkard does not contend that her EPA claim is based upon anything
other than the pay disparity between herself and Mr. Miller during the time she was a Regional
Manager – Customer Service. (See Doc. 65, at 23-29).
11
years of management experience; Pinkard had none. Miller had an MBA from a prestigious
school; Pinkard had no MBA. Hilti also says it had to pay Miller more to lure him away from
his prior employer, and that his position as a Regional Manager – Customer Service was merely
a placeholder for him to get accustomed to Hilti’s business before advancing his placement. The
undisputed evidence supports Hilti’s claims about Miller’s experience and background, and
reflects that Hilti intended to move him up the management ladder very quickly. Pinkard has
failed to create any genuine dispute of fact as to these justifications. In other words, Hilti has
carried its burden of demonstrating that the pay disparity between Pinkard and Miller was based
upon a factor other than gender.
Summary judgment is granted as to Pinkard’s EPA claim.9
D. Title VII Disparate Pay Claim
Pinkard also asserts a claim against Hilti under Title VII for an alleged pay disparity
based upon gender. On a Title VII pay disparity claim, “the employer need only proffer a
legitimate, nondiscriminatory reason” for the disparity. Mickelson, 460 F.3d at 1312. Hence,
this claim fails for the same reasons as Pinkard’s EPA claim. As discussed above, Hilti has
shown that there was ample legitimate non-discriminatory justification for the pay disparity
between Miller and Pinkard. Pinkard has not put forth evidence that would demonstrate pretext.
Summary judgment is granted in favor of Hilti as to Pinkard’s Title VII pay disparity
claim.
IT IS THEREFORE ORDERED that Hilti’s Motion for Summary Judgment and Brief
in Support (Doc. 52) is granted. A separate judgment is entered herewith.
9
Hilti argues that Pinkard’s EPA claim is barred by the statute of limitations. In light of the
Court’s finding that Pinkard’s claim fails on its merits, the Court needn’t address the statute of
limitations defense.
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SO ORDERED this 11th day of June, 2013.
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