Defendant Municipal Employees Credit Union of Baltimore, Inc. has moved, for summary judgment against the plaintiff, Wanda Kess. The issues in this motion have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the motion for summary judgment will be granted.
BACKGROUND
Defendant Municipal Employees Credit Union of Baltimore, Inc. (“MECU”) is a federally-insured credit union which provides financial services to employees of the City of Baltimore. During 1999 and 2000, MECU implemented a plan to open three new branches around Baltimore. Four employees of MECU were responsible for creating a new branch manager position and supervising the new branch managers: CEO Bert Hash, COO Andrew Patáki, Vice President of Brarlch Operations Patricia Roberts, and Vice President of Human Resources Warren Wilson. 1 On April 17, 2000, plaintiff Wanda Kess (“Kess”) was offered and accepted the position of Branch Manager for the new MECU Falstaff branch. 2 Kess was employed in this position until August 29, 2002, when she was terminated, after being placed on paid leave six days earlier. The same four members of the MECU management team also were involved in the decision to terminate Kess. In this suit, Kess alleges race discrimination regarding her compensation, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), sex discrimination regarding her compensation and retaliation, in violation of Title VII, and age discrimination in her termination, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, etseq. (“ADEA”).
When Kess was hired by MECU in 2000, she had a high school diploma, the equivalent of approximately one year of college credits, and over twenty-five years of experience working for several banks in different capacities. She had held a supervisory position for nine years, and had direct responsibility for the operations of a branch for five years. Kess testified that she was informed prior to her interview with MECU that the starting salary for the branch manager position would be $40,000 for those without experience and $44,000 for those with experience. 3 (Pl.’s Opp. Mem. at Ex. lb., Kess Dep., at 34-35, 43.) In response to questions from Kess, Warren Wilson told her that the salary was not negotiable and already took into account her prior experience. (Id.) Kess was offered and accepted the position at a starting salary of $44,000. 4
MECU hired four other branch managers during the period between 1999 and 2001, starting with Frank Ciesla in August 1999.
5
Ciesla had a college degree, was completing a master’s degree, and had al
MECU then hired Desiree Stafford as a branch manager on November 3, 1999 and John Vassallo on April 25, 2000, along with Kess. 7 Stafford and Vassallo were offered and accepted a starting salary of $44,000. 8 Like Kess, they had considerable experience working for banks or credit unions, and had at least some experience working as a branch supervisor. Also like Kess, Stafford did not have a college degree. Vassallo left the position with MECU within his first year on the job, after he was offered a higher-paying position with his former employer. MECU then hired John Godwin as the fourth branch manager in 2001. 9 Godwin had a college degree and a master’s degree in business administration, and had been the CEO of a small credit union for several years. Godwin negotiated a starting salary of $48,000.
Members of the MECU management team and employees who worked under Kess at the Falstaff branch testified about a variety of ongoing problems during Kess’s tenure at the branch, which many of them attributed to her negative leadership style, poor communication skills, and inappropriate treatment of staff. (Id. at Ex. 3, Roberts Aff., at ¶ 3-4, 6-7, 9-10; id. at Ex. 4, Pataki Aff., at ¶ 7-8; id. at Ex. 5, Smith Aff., at ¶ 5-9; Pl.’s Opp. Mem. at Ex. lc., Rouse Dep., at 17-18, 21-36; id. at Ex. Id., Hardy Dep., at 5-7, 15-17, 20-25, 41; id. at Ex. lg., Harrison Dep., at 5-11, 23-25; id. at Ex. lh., Tyler Dep., at 5-11, 14-15, 17-18, 21-22.) In early 2002, Leli-eth Bagwandeen, an assistant manager working under Kess at the Falstaff branch, informed MECU management that she did not want to work under Kess any longer, even if this required a demotion. (Def.’s Mem. at Ex. 3, Roberts Aff., at ¶ 7; id. at Ex. 6, Bagwandeen Dep., at 5-6.) Between February and May 2002, MECU sent employee Glenda Smith, an African-American female, to the Falstaff branch to make observations and recommendations about how to improve the branch. (Id. at Ex. 5, Smith Aff., at ¶ 4.) Smith reported back that employee morale was very low, Kess did not have good communication or interactions with her staff, and staff reported feeling belittled, upset, confused, and frustrated because of Kess. (Id. at ¶ 5-10.)
Kess’s termination followed a specific incident at the Falstaff branch on August 23, 2002. Jowanna Rouse, a teller working under Kess at the branch, testified that Kess was visibly angry when she arrived that morning, and began yelling at several branch employees. (Pl.’s Opp. Mem. at Ex lc., Rouse Dep., at 36-42.) Rouse and
Warren Wilson then interviewed employees at the Falstaff branch about Kess’s behavior. (Id. at Ex. 1, Wilson Aff, at ¶ 13.) According to Wilson, the employees confirmed the initial reports of the August 23 incident, and reported more generally that Kess had been intimidating, belittling, disparaging, and retaliating against employees working under her, and openly disparaging MECU. (Id.) Wilson reported his findings to the other members of the MECU management team on August 28, and they all agreed that Kess’s reported conduct warranted termination. (Id. at ¶ 14-15; id. at Ex. 3, Roberts Aff., at ¶ 14; id. at Ex. 4, Pataki Aff., at ¶ 11-12.) Kess was formally notified of her termination on August 29, 2002. After Kess’s termination, Glenda Smith was promoted to become the branch manager of the Falstaff branch. 10 Smith had been employed by MECU in various capacities since 1977. When she took over Kess’s position as branch manager in 2002, Smith was earning $53,926 annually, which included a merit increase of 4.86 percent because she was promoted into the position.
Kess cites two examples in which she complained about the use of racially-charged language in the workplace at the Falstaff branch. In July 2001, in conversations with Kess, Patricia Roberts referred to a new teller at the Falstaff branch as “poor white trash” and disparaged the teller for coming from Dundalk. (Pl.’s Opp. Mem. at Ex. lb., Kess Dep., at 58-63, 66-67.) Kess testified that Roberts made this comment to her twice in a span of about two weeks; Roberts admitted that she made the comment on one occasion. (Id. at 58, 61; Def.’s Mem. at Ex. 3, Roberts Aff., at ¶ 15.) Between July 2001 and January 2002, Kess complained to Roberts and to Andrew Pataki and Bert Hash about the “poor white trash” comment. (PL’s Opp. Mem. at Ex. lb., Kess Dep., at 65-72.) Roberts apologized to Kess in January 2002. (Id. at 71-72.) The second incident occurred around July 2002, when two of the tellers at the Falstaff branch referred to each other using the word “nigger.” (Id. at 73-77; see also id. at Ex. Id., Hardy Dep., at 18-20.) Kess was not present when the comments were made, but the incident was reported to her, and she subsequently was involved in reporting the incident to Warren Wilson and Patricia Roberts and in disciplining the two employees. (Id. at Ex. lb., Kess Dep., at 74-77, 91-92; id. at Ex. Id., Hardy Dep., at 18-20.)
Prior to Kess’s termination, both Desiree Stafford and Kess had complained to MECU management about their salaries being lower than those of the other two branch managers, John Godwin and Frank Ciesla. Stafford met with the four members of the MECU management team to discuss the issue. Kess testified that she raised the salary disparity issue with Bert
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc.,
“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 facts showing that there is a genuine issue for trial.’ ”
Bouchat v. Baltimore Ravens Football Club, Inc.,
Kess claims that she was subject to race, sex, and age discrimination and retaliation in violation of Title VII, 42 U.S.C. § 1981, and the ADEA. A plaintiff may defeat a defendant’s motion for summary judgment and establish a claim for intentional race, sex, or age discrimination or retaliation through either the “mixed-motive” or “pretext” methods of proof.
See, e.g., Hill v. Lockheed Martin Logistics Mgmt, Inc.,
Under the traditional “pretext” method of proof, a plaintiff establishes her claim under the burden-shifting scheme articulated in
McDonnell Douglas Corp. v. Green,
“At this point, the burden to demonstrate pretext ‘merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination.’ ”
Id.
(quoting
Tex. Dep’t of Cmty. Affairs v. Burdine,
I.
Kess claims that she was compensated less than white male branch managers performing the same job, because of her race and sex.
12
To establish a prima facie case of race or sex discrimination in compensation under Title VII, a plaintiff must prove that (1) she is a member of a protected class; (2) she was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job.
Gbenoba v. Montgomery County Dep’t of Health & Human Servs.,
MECU has responded with legitimate, non-discriminatory reasons for the salary disparities. MECU states that Ciesla and Godwin were able to negotiate a higher starting salary because they had significantly more management experience and education than either Kess or Stafford. (Def.’s Mem. at 14-16; see also Pl.’s Opp. Mem. at Ex. If., Wilson Dep., at 11, 13-14.) Wilson testified that if MECU wanted a particular candidate badly enough, based on the skills and value that the individual would bring to the company, then the company would negotiate to get the individual “for whatever it takes.” 16 (Pl.’s Opp. Mem. at Ex. If., Wilson Dep., at 11-12, 14.) Wilson also noted that Smith’s salary cannot be compared to the other branch managers, because she worked her way up through the company over many years. (Id. at 19-22.) The evidence in the record, undisputed by Kess, supports these explanations for the salary disparities. Ciesla and Godwin both had college degrees, and had or were in the process of completing master’s degrees. Ciesla had almost twenty years of experience managing bank branches, and Godwin had served as the CEO of a credit union for several years and had a graduate degree in business administration. Kess and Stafford, on the other hand, did not have college degrees, and Kess had only five years of experience in branch management. As for Smith, she started with MECU in a clerical position in 1977, and eventually was promoted to the branch manager position in 2002-unique circumstances compared to the other branch managers.
Kess has failed to establish that these non-discriminatory explanations are “unworthy of credence.”
Mereish,
Kess does not dispute other evidence in the record which further supports MECU’s explanations. John Vassallo, another white male, was offered and accepted the branch manager position with MECU for a starting salary of $44,000, the same amount offered to Kess and Stafford. Moreover, while Kess and Stafford started with lower salaries than Ciesla, they received comparable annual raises. Ciesla received an annual raise of 3.75 percent in his first year, while Kess received an annual raise of 4.25 percent during her first year. Stafford received two annual raises totaling approximately nine percent during her first two years, while Ciesla’s annual raises during this same period totaled approximately ten percent. Finally, Kess and Stafford received annual raises of six percent in 2002, while Ciesla received an annual of raise of five percent that same year.
Kess also has not offered “other forms of circumstantial evidence sufficiently probative” of race or sex discrimination to rebut MECU’s explanations.
Mereish,
II.
Kess alleges that she was discharged in retaliation for raising complaints to MECU management about the salary disparity issue and about Patricia Roberts’s use of the term “poor white trash.”
17
To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that (1) she engaged in protected activity; (2) an adverse employment action was taken against her; and (3) there was a causal link between the protected activity and the adverse employment action.
Mackey v. Shalala,
To establish causation, the third element, Kess relies exclusively on temporal proximity. Kess testified that she raised the salary disparity issue with MECU management on several occasions up through August 2002, and she was terminated on August 29, 2002. This is sufficient to estabhsh a prima facie case of retaliation.
See, e.g., Kline v. Certainteed Corp.,
In any event, Kess’s claim for retaliation fails, because MECU has provided a legitimate, non-diseriminatory reason for her termination, and she has failed to estabhsh that this explanation is pretext for retaliation. MECU states that Kess was terminated based on the August 23, 2002 incident" at the Falstaff branch and the findings from a subsequent investigation that Kess was mistreating employees at the branch. Kess does not directly dispute the company’s version of the events of August 23, which is supported by the record. (Pl.’s Opp. Mem. at Ex. lc., Rouse Dep., at 36-42; id. at Ex. Id., Hardy Dep., at 32-34, 38-39.) In addition, numerous witnesses testified about ongoing problems at the Falstaff branch during Kess’s tenure, and most of the employees attributed these conflicts to Kess. (Def.’s Mem. at Ex. 3, Roberts Aff., at ¶ 3-4, 6-7, 9-10; id. at Ex. 4, Pataki Aff., at ¶ 7-8; id. at Ex. 5, Smith Aff., at ¶ 5-9; Pl.’s Opp. Mem. at Ex. lc., Rouse Dep., at 17-18, 21-36; id. at Ex. Id., Hardy Dep., at 5-7, 15-17, 20-25, 41; id. at Ex. lg.,-Harrison Dep., at 5-11, 23-25; id. at Ex. lh., Tyler Dep., at 5-11, 14-15, 17-18, 21-22.) Members of the management team stated that this information was reported to them, and was the basis for the decision to terminate Kess. (Def.’s Mem. at Ex. 1, Wilson Aff., at ¶ 14-15; id. at Ex. 3, Roberts Aff., at ¶ 14; id. at Ex. 4, Pataki Aff., at ¶ 11-12.) MECU thus has offered a legitimate, non-discriminatory reason for Kess’s termination, which is amply supported by the record. Any inference of retaliation for Kess’s complaints about the salary disparity issue is further weakened by the fact that Desiree Stafford, who raised similar complaints during the same time period, was not terminated.
Rather than establishing that MECU’s explanation is “unworthy of credence” or offering “other forms of circumstantial evidence sufficiently probative” of retaliation, Kess seeks to attack the decision to terminate her on the merits.
III.
Finally, Kess claims that she was discharged because of her age, in violation of the ADEA.
See
29 U.S.C. § 623(a)(1). To establish a prima facie case of discriminatory discharge under the ADEA, a plaintiff must prove that (1) she was a member of the protected class, i.e. at least 40 years old; (2) she suffered an adverse employment action; (3) she was at the time meeting the employer’s legitimate expectations; and (4) she was replaced by someone who is either outside the protected class or substantially younger than the plaintiff.
Connor v. Giant Food, Inc.,
Kess has offered only weak evidence to satisfy the fourth element. Kess was 50 years old when she was terminated by MECU; her replacement, Glenda Smith, was 42 years old. Kess thus was replaced by an employee within the protected class under the ADEA.
See
29 U.S.C. § 631(a). It is not clear whether the age gap of eight years between the two employees is sufficient, in itself, to meet the “substantially younger” standard.
See Grosjean v. First Energy Corp.,
In any event, Kess has failed to carry her ultimate burden of establishing a reasonable inference of impermissible age discrimination. Putting aside the age gap between Kess and Smith, the remaining evidence contradicts Kess’s claim of age discrimination. Kess was fired by the same four members of the MECU management team that had hired her “a relatively short time” after her hiring, which creates “a strong inference” against a finding of discrimination.
Proud v. Stone,
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. the defendant’s motion for summary judgment (docket no. 12) is GRANTED;
2. copies of this Order and the accompanying Memorandum shall be sent to counsel of record; and
3. the clerk of the court shall CLOSE this case.
Notes
. Hash and Wilson are African-American males. Pataki is a white male. Roberts is an African-American female. These four employees formed the MECU management team during the relevant time period.
. Kess is an African-American female born on July 27, 1952.
. MECU states that it set the overall salary range for the branch manager position at $40,000 to $75,000. (Def.'s Mem. at Ex. 1, Wilson Aff., at ¶ 6.)
. Kess received a 4.25 percent annual raise in April 2001 (to $45,870), and in April 2002 she received a six percent annual raise (to $48,622).
. Ciesla is a white male.
.Ciesla received a 3.75 percent annual raise in August 2000 (to $49,800), a 6.26 percent annual raise in August 2001 (to $52,917), and a five percent annual raise in August 2002 (to $55,561). Warren Wilson testified that part of the raise in 2001 was to compensate for parking expenses, because Ciesla was working at the only MECU branch without parking. (PL's Opp. Mem. at Ex. If., Wilson Dep., at 10.) Ciesla also received a bonus in 2000 of $2,500 for opening up the MECU branches. (Id.)
. Stafford is an African-American female. Vassallo is a white male.
. Stafford received two annual raises totaling approximately 9 percent for the years 2000 and 2001 (to $47,933 in 2001), and in 2002 she received an annual raise of six percent (to $50,800).
. Godwin is a white male.
. As noted, Smith is an African-American female. She was bom on April 30, 1960.
. The Fourth Circuit has assumed that a plaintiff pursuing a mixed-motive case under the ADEA cannot rely upon circumstantial evidence alone, and is required to introduce some
direct
evidence of an impermissible motivation, even after the 1991 Civil Rights Act.
. In her complaint, Kess also alleges that MECU engages in a "pattern and practice” of race discrimination regarding job assignments and pay. (Compl. at ¶ 5.) Kess is limited to the scope of the charge that she filed with the EEOC, however,
see Bryant v. Bell Atl. Md., Inc.,
. A claim of sex discrimination in compensation also could be brought under the Equal Pay Act, 29 U.S.C. § 206(d), based on the same prima facie elements.
See Jordan v. CSX Intermodal, Inc.,
. There is no information in the record about the salary that John Godwin was earning at that time.
. MECU notes that Ciesla served as the initial branch manager at each of the three new branches and was hired for this purpose. Although this distinguishes Ciesla from the other branch managers, he also was compensated separately for this with an additional bonus of $2,500 in 2000. Ciesla’s job as branch manager thus remains substantially similar to Kess and Stafford, and Smith’s jobs as branch manager for the purpose of establishing a prima face claim of discriminatory compensation.
.The record indicates that Ciesla and God-win negotiated their starting salaries, while Kess, Stafford, and Vassallo accepted the starting salaries that were offered to them. (Def.’s Mem. at Ex. 1, Wilson Aff., at ¶ 8, 10-12.) Kess testified that Wilson told her that the starting salary offered to her was not negotiable. (Pl.’s Opp. Mem. at Ex. lb., Kess Dep., at 34-35, 43.)
. Kess also points to the incident in July 2002 when she disciplined two employees at the Falstaff branch for using the word “nigger” to refer to each other. Kess testified that she reported this incident to Patricia Roberts and Warren Wilson in the context of determining how to respond to this incident, and that Wilson helped her draft a disciplinary action letter for the two employees. (Pl.’s Opp. Mem. at Ex. lb., Kess Dep., at 74-77, 91-92.) Kess’s participation in a joint decision with management to discipline two subordinate employees does not constitute the kind of opposition to practices made unlawful under Title VII that is protected under 42 U.S.C. § 2000e-3(a). This claim also does not fit with the language in Kess's complaint, which states that she objected to the use of racial terms “by management employees.” (Compl. at ¶ 7.)
. Although Patricia Roberts and Warren Wilson stated that Kess never framed the salary disparity issue as one of race or sex discrimination (Def.'s Mem. at Ex. 1, Wilson Aff., at ¶ 19; id. at Ex. 3, Roberts Aff., at ¶ 18), this is contrary to testimony by Kess and by Bert Hash (PL's Opp. Mem. at Ex. lb., Kess Dep., at 78-80; id. at Ex. 1L, Hash Dep., at 6-7). Viewing the evidence in the light most favorable to Kess, her complaints constituted opposition to a practice made unlawful under Title VII, and thus were protected activity.
. Neither Sharon Speaks nor Delores White has any personal knowledge of the events of August 23, 2002 at the Falstaff branch or of the past conflicts between Kess and her staff. (PL's Opp. Mem. at Ex. la., Speaks Dep., at 9, 23-24; id. at Ex. le., White Dep., at 36-41.) Moreover, at the time of her deposition White was on medical leave from MECU for anxiety attacks stemming from what she describes as a “hostile, threatening environment” at work. (Id. at Ex. le., White Dep., at 32-35.)
. In
O’Connor v. Consolidated Coin Caterers Corp.,
. Also relevant on this point is that MECU hired at least one other branch manager, Frank Ciesla, who fell within the scope of the ADEA. Ciesla was born on January 21, 1950, and thus was 49 at the time of his hire.