Coward v. ADT Security Systems, Inc.

bargain scheduling when it refused to with the union as Hearing issued a Notice Board collective-bargaining represen- Flamingo the exclusive in Hilton-Reno argument oral 7, 1996, there- August tative of Overnite’s Randell Warehouse and prepare deny petition to ar- parties to fore Overnite’s for review and directing the including: cross-petition stan- grant “What the Board’s for enforce- gue questions, five apply to determine the Board ment. dard should videotaping of photographing or

whether So ordered. practice labor ob- employees is an unfair conduct?”; weight, any, if jectionable “What give evidence that the Board

should the videotaping photographing of the

purpose and “Are explained employees?”; the Board should factors that

there other determining photo- in whether

consider videotaping is coercive

graphing or and/or Hearing, objectionable conduct?”Notice COWARD, Appellant, Edward No. 28- and Case No. 32-CA-14378 Case 1996) (June 12, in (quoted Brief of RC-5274 23). ques- Athough Petitioner SYSTEMS, ADT SECURITY tions, broadly, overlap with the could read Inc., Appellee. case, appears to in this it presented issues Nos. 97-7073. the issues will context which us that the pending quite examined is different. Appeals, States Court of United attrib- incidents of surveillance cases involve District of Columbia Circuit. election, not to third party utable to a exception, limited parties. With Agued Feb. 1998. par- third involves conduct case at hand April Decided Moreover, pending cases center on ties. photography videotape use whether is an unfair labor campaign literature objectionable conduct

practice or constitutes protecting the the tension between

and on pro- parties speech

free interests These issues

viding a free and fair election. directly implicated in this unlikely to have

therefore their resolution In on the outcome. addi-

much if effect

tion, videotaping by single incidence voluntarily attend-

the union of workers who clearly insuffi- meeting a union was so

ed overturning the election

cient to warrant unnecessary Board’s to await the pending ease.

decision province in con- well within its

Board was motion for reconsid-

cluding that Overnite’s previously con- “nothing not

eration raises merit. and therefore lacked Order

sidered”

Denying for Reconsideration. Motion

III. Conclusion reasons, foregoing we hold that

For the practices engaged in unfair labor

Overnite 8(a)(1) (5)

within the of sections Jr., McKnight, Washington,

H. Vincent DC, argued briefs the cause filed the for appellant. Lauten, Baltimore, MD, argued

H.Max appellee. cause filed the brief for SENTELLE, Before: TATEL and GARLAND, Judges. Circuit Opinion for the Court filed Circuit Judge TATEL. part

Opinion concurring Judge in the filed Circuit SENTELLE.

TATEL, Judge: Circuit action, In this the dis- plaintiff trict court found estab- granted lished a facie case and sum- Although mary judgment employer. respect we with the district court with plaintiff, plaintiff find the other evidentiary satisfied the minimal burden needed raise issue material to his case. fact with part, part, affirm in therefore reverse remand.

I Appellants Melvia and Edward employed by are African Americans Security Systems, A appellee sup- ADT Inc. security plier systems and ser- electronic vices, salary grade struc- maintains through consisting grades E-20. ture E-3 Salary “steps.” Each five has ranges top-step A E- grades overlap: within $11,000 approximately example, earns assigns bottom-step more than a E-9. 2505, 2513-15, codes, titles, every employ- 106 grades to L.Ed.2d job (1986). or, may issue, title “If material are Employees with same facts ee. codes, grades, and undisputed, susceptible different though have different to diver- duties; inferences, together, all of these gent summary judgment even different is not general- Tao, salary. titles (citing Job F.3d Alyes- factors determine available.” im- performed EPA, and ly serve as reflect v. Pipeline ka Serv. U.S. 856 F.2d Co. (D.C.Cir.1988)). in although dispositive, 309, factors portant, 314 setting salary. II sixties, by since late

Employed in Boling Supervisor” a “Data became Melvia Boling allege and Because Coward a of grade 1988 a of E-8 and discrimination, wage apply the intentional $85,000. a working on approximately While Douglas burden-shifting familiar McDonnell 1995, Boling given in temporary project Douglas v. Corp. test. See McDonnell “Project Manager.” received no She the title 792, Green, 13, 411 802 n. U.S. & 93 S.Ct. salary. grade in increase either related (1973). 1817, 13, 1824 & 36 L.Ed.2d 668 Managers are white and Al ADT Only stage prima of that the first test—the contrast, Boling. By earn more than but two at a facie case—is issue here. To establish Supervisors. than all Data Boling earns more prima Boling must facie and Coward of An E-8 for most the last seventeen evidence, by a preponderance show promoted briefly years, Edward Coward was Dep’t Community Texas v. Bur Affairs position of Telecommuni- July in 1994 to the 1089, dine, 248, 252-53, 450 101 S.Ct. U.S. and Facilities cations Network 1093-94, (1981), membership 207 67 L.Ed.2d (“TNFM”), Approxi- of E-9. with a (uncontested ADT), protected in a class “ later, mately months ADT reclassified nine [they] performing and ‘that were work sub E-8, changing him E-9 back to later stantially employees] equal [white to that of Support.” “Technical Coward his title to compensated higher [] rate[s] at were ” TNFMs, most all whom earns less than [they (vigorously were]’ than contested white; more than most Techni- are he earns ADT). Aman v. Cort Furniture Rental Support cal staff. (3d Cir.1996) 1074,1087 (quot Corp., 85 F.3d 210, ing Corp., F.Supp. 613 pays than Hohe v. Midland Alleging that ADT them less (8th (E.D.Mo.1985), ajfd, 42 214 786 F.2d counterparts in violation of 1172 their white Cir.1986)) (alterations (1994), original); Boling in also § see 1981 U.S.C. Store, Inc., Grocery v. B & B Cash United States District Miranda brought suit (11th Cir.1992) 1518, Claiming (prima District of Court for the Columbia. showing membership prima plaintiff had established a facie ease consists that neither discrimination, plaintiffs simi protected class and that ease of facie jobs higher paying occupied by non- summary judgment. The lar to district moved members). “minimal,” Mthough St. agreed, finding Boling was a Data that class Hicks, 502, Project Manager; Mary’s that v. Supervisor, not a Honor Ctr. 2742, 2747, 125 L.Ed.2d Support, not a 113 S.Ct. Coward was Technical Burdine, viewed, (1993), onerous,” TNFM; had and “not 450 U.S. that so situated, 253,101 case better-paid any identified function,” important an id. at “serves 101 S.Ct. at 1094: appeal Boling now the district and Coward common nondis- judgment ADT. eliminates the most grant [I]t court’s Freeh, criminatory plaintiffs re- reasons for the v. Our review is de novo. Tao (D.C.Cir.1994). rais- jection____ facie case Mthough [T]he we draw an inference justifiable in favor of es factual inferences acts, presume if Coward, these other- because we bear the burden unexplained, likely more establish- wise pointing to “affirmative evidence” imper- consideration not based genuine dispute. Anderson factual Inc., 242, 255-57, factors. Establishment of Lobby, missible Liberty pre- incomplete as to be inadmissible as irrele- prima facie case effect creates a so unlawfully vant.” Id. at 400 n. 106 S.Ct. at 3009 n. sumption employer explained although too have “a against employee. discriminated defendant cannot undermine a (citations Id. at 101 S.Ct. at 1094 analysis simply by pointing to variables not omitted). If quotation marks a reasonable might conceivably taken into account that of ma- factfinder could infer issue ...[,] pulled analysis’s sting [sic] terial fact with element require acceptance Bazemore [does not] prima facie as whether white em- case—such major regressions clearly from which varia- performing substantially bles have been omitted—such as education plaintiff—summary earn more than the work Reno, prior experience.” Roger v. work stage inappropriate. at that (D.C.Cir.1996) (citations 631, 98 F.3d 637 cases, Boling To establish their omitted). types on of and Coward relied two evidence: “Major regression factors” that a analysis multiple regression comparing sal- analysis depend must include on the facts minority non-minority employees aries of theory particular of the case. In Baze comparisons throughout company; the of more, example, found that Court their actual individual salaries to those of accounting omission of variable for differ consider this evi- immediate co-workers. We by county, though ences in salaries relevant dence in Parts III and IV. plaintiffs’ claim of state-wide dis crimination, require did not exclusion of the Ill Bazemore, analysis. regression 478 Controlling only for race and seniori Depending 106 S.Ct. at 3009-10. ty, multiple regression analysis shows case, theory may of the some variables be throughout ADT’s Mid-Atlantic Divi entirely allege plaintiffs unsuitable. Where sion, company pays African American discriminatory promotion practices, for ex employees approximately percent twelve less ample, of considers inclusion regres Because the “inappropriate” employ variables because an analysis for education sion failed to account grade may ee’s itself reflect discrimination. prior experience, work the district court Serv., 56, Valentino v. U.S. Postal excluded it from consideration. (D.C.Cir.1982) (citation omitted). 72 n. 30 Supreme Court established the rule Applying these standards- to this we admissibility analy- governing of regression analysis find that was “so v. ses discrimination cases Bazemore incomplete as to be inadmissible as irrele- Friday, 92 S.Ct. vant,” Bazemore, 478 U.S. at 400 (1986): L.Ed.2d 315 10, though at 3009 n. for a reason not S.Ct. While the omission of variables from a by regres- considered the district court. The regression analysis may render the anal- analysis job sion failed to account for ysis probative less than it otherwise representing type other variable said, be, might hardly it can absent performed. This omission is fatal because infirmity, analysis some other that an Boling they and Coward claim that should be major for the factors which accounts compared employees job catego- in other unacceptable as must be considered evi- perform similar earn ries who work but who Normally, fail- dence discrimination. they. According more than to their own ure to include variables will affect the case, therefore, title, job theory analysis’ probativeness, not its admissi- work, type some other measure of serves bility. “major as a factor” within the (Brennan, J., Bazemore. But because the anal- Id. Justices) job joined ysis compares employees in part, all cate- (citations omitted). work, accounting quotation gories marks without rule, nothing Qualifying this the Court added that tells us about whether “[tjhere course, regressions perform paid work are different- may, of be some use ly. Boling paid and Coward therefore cannot or should be like one. Al- though usually regression analysis strong to show that titles serve as evi- employee’s employees earn more. Since dence of an actual skills situated white Inst, duties, see, e.g., regression analysis Burger is flawed as a matter New York (2d Tech., Cir.1996) (under law, we need decide whether rea- ADEA, given by similarity jobs son the district court—the omission could be inferred titles), parallel job prior experience Boling’s..admission of education and variables— independently nothing that she would invalidated knew about the analysis. Managers or even that she held the title, together undisputed expla- with ADT’s IV temporary, nation that the title elimi- any genuine dispute nates brings Boling’s and about the real This us to Coward’s compare nature of her work. We thus Bol- efforts to establish facie cases ing’s salary Project Manag- not to showing salaries personally earn less than ers, Supervisors. but to salaries of Data Be- situated whites. The district court Supervisor no so; cause Data makes more than held that neither did with she, properly granted the district court Boling, respect to but not Coward. Boling. Because claims that she is un duties, experience, derpaid given her Boling, pointed Unlike has to seniority, and because she earns more than genuine evidence that creates factual issue Supervisors, depends all Data her ease similarly about whether situated em similarly her assertion that she situated ployees earn more than he. Coward’s ser Project Managers, all whom are white and “promotion” vice record reflects his to the sup In most of earn more than she. whom position Boling, of TNFM. Unlike who testi claim, port Boling points of her to ADT’s own nothing that fied she knew about the duties Project refer to her as a records which Man Project Managers, him Coward described ager. argues during pen the She also that managerial super self and his duties as dency changed of this ADT her title visory, consistent with TNFM status. ADT Project Supervi back to Data “aeknowledge[d] overlap there is some be Boling briefly Admitting that the sor. held position that of a [Coward’s] tween Project Manager, argues title that Indeed, Appellee’s TNFM.” Br. at at temporary, title was that it have the should argument oral for ADT the counsel conceded ended, changed project when the been genuine of a of material fact existence issue Boling performs that none of over is a whether Coward TNFM. Accord Project Managers. points other out ingly, Coward’s TNFM status should not Boling’s complaint that own identifies her as summary judgment. at have been resolved Supervisor. a Data It also on her relies deposition testimony acknowledging only The district court also found that Coward change that she was unaware of the title genuine fact failed to raise a issue of material time, nothing but that she knows about grad- about whether he was either the lowest Project Manager duties. respect to paid ed or lowest TNFM. With circumstances, “sup- court question grade, the district

Under these with juror posted] district that failed to create that a could con- court reasonable issue of material fact with clude that white TNFMs were slotted Coward,” higher grades than but neverthe- a critical element her facie ease— rejected wage similarly Project possible that she is situated to Man- less evidence discrimination, agers. “Project Manager” pointing The in ADT’s out that under title only suggesting overlapping salary ADT’s structure Coward records is her evidence that theoretically higher- anything her skills could earn as much as duties and amount court had it Supervisor. graded other than those of a Data TNFMs. But the before She listing all TNFMs and pointed to no other evidence that ADT’s chart has would own grades showing employees higher support an inference that she is a with higher majority A generally correctly judges have salaries. reasonable The Coward’s juror thus could infer regression analysis, only which controlled grade. By rejecting from Coward’s lower service, years incomplete race and “so as favor, this inference in Coward’s the district Maj. Op. to be inadmissible as irrelevant.” usurped jury’s factfinding role. (quoting Friday, Bazemore v. company’s sup The list of TNFMs further 106 S.Ct. contention, rejected ports Coward’s also (1986)). 3009 n. 92 L.Ed.2d 315 The court, the district that he earned less than regres- district court had concluded that the chart, According eight most TNFMs. to the sion failed to include “essential variables” (one E-lOs) TNFMs E-9 and seven earn experience. majority like education and (one only more than Coward and three E-8 today finds a different flaw: omission of E-9s) and two earn less. All TNFMs listed “job representing other variable are white. That some TNFMs make less performed.” Maj. Op. at 274. Coward, heavily a fact relied on ADT, makes no difference. Coward need not perspective, From either the bottom line is show situated white em probative this: has no value Identify receive better treatment. compare employees because it does not employees—even some situated reasonably “similarly can be deemed situat- one—establishes a facie case. See race, ed.” Besides controls Secretary, Dep’t Parker v. Hous. and years of service at ADT. Devel, (D.C.Cir. Urban groups together equiva- with 1989) (“[T]he fact that ... a black female seniority, lent whether mailroom clerks or opportunities was denied educational when high-level managers, long so as not, employee gives another white male discriminatory company equivalent to an length rise inference of treat been an ment.”); Hattiesburg Pittman v. Sepa Mun. classification, of time. applied Such a to the Dist., (5th rate Sch. Cir. body employees, entire of ADT is too broad: 1981) (“The May Unit A unequal pay usual no Under reasonable definition of the term employees, case involves two one black and could be considered situ- white, employed at the same time and seniority ated on the basis alone. As we work.”). doing substantially the same Hav before, “regression have said when a model eight higher-paid identified white em ignores information understanding central to ployees, majority TNFMs, Coward has issue,” relationships the causal it does not requirements satisfied the pri minimal of a adequately raise an inference that discrimi- ma facie case. salary nation among accounts for differences employees. Valentino v. United States Post- V (D.C.Cir.1982). Service, al inquiry Since the district court ceased its pay Employee depends many on far too addi- stage, at the deciding salary comparison tional factors to allow this proffered whether ADT nondiscriminatory seniority presump- based to raise a reason for Coward’s nor tion of race discrimination. proffer, whether Coward the re- rebutted such a see Douglas Corp., McDonnell gression is properly irrelevant and was ex- 93 S.Ct. at we reverse and remand by the cluded district court. Coward’s case so the district court can com- court, majority, The like the district at- plete judgment inquiry. As to tempts identify specifically what the re- Boling, we affirm. gression should have included to render it So ordered. probative. regression The flaw with the is SENTELLE, Judge, “major concurring Circuit neither that it excluded factors” like part judgment: experience, nor that education it failed to “job “type per- account for title” or result, majority’s I concur with the but do variety formed.” There are a of different join reasoning its Part III of its exclusive) opinion. (perhaps mutually ways even variables which independent select a set of are, employees who more together group

will less, flaw situated. independent variable classify em- begin to did not even

selected training, per- experience,

formance, duties, Including var- or function. experience might go for education and

iables way identifying relevant simi- long toward

larities, might including variables but so approach work. Neither Ei- best one. necessarily the “correct” or could to an admissible

ther lead experts

analysis; up to the would then lawyers argue the

weight to it. to be accorded HINCKLEY, Jr., Appellant,

John W. America, Appellee. STATES of

UNITED

No. 97-3094. Appeals, Court

United States

District Columbia Circuit. 16, 1998.

Argued March April

Decided

Case Details

Case Name: Coward v. ADT Security Systems, Inc.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 10, 1998

Citation: 140 F.3d 271

Docket Number: 97-7072, 97-7073

Court Abbreviation: D.C. Cir.