Blasingame v. Eli Lilly & Co.

PATTI A. BLASINGAME, Plaintiff, v. ELI LILLY AND COMPANY, Defendant.

CIVIL ACTION NO. H-11-4522

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: October 18, 2013

MEMORANDUM OPINION AND ORDER

Plaintiff, Patti A. Blasingame, brings this action against defendant, Eli Lilly and Company, for sex discrimination in employment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, the Texas Commission on Human Rights Act ("TCHRA"), as codified in the Texas Labor Code 29, § 21.001, et seq., and the Lilly Ledbetter Fair Pay Act of 2009 ("LLFPA"), 42 U.S.C. § 2000e-5(e)(3)(A). Pending before the court is Defendant's Motion for Summary Judgment (Docket Entry No. 22). For the reasons stated below, defendant's motion for summary judgment will be granted and this action will be dismissed.

I. Undisputed Facts

Plaintiff was hired by defendant in 1992 as a pharmaceutical sales representative. In 2001 plaintiff received a promotion when Wesley Sackrule selected her from a list of company-approvedcandidates to serve as a District Sales Managers ("DSM") under his supervision. In October of 2010, following an interim review of her 2010 performance, plaintiff complained about Sackrule's allegedly discriminatory conduct to Sackrule's immediate supervisor, Grady Grant.¹ Rebecca Savikas in defendant's Human Resources ("HR") Department investigated plaintiff's complaint.² In November of 2010 Sackrule was reassigned "to an individual contributor role . . . because Savikas' investigation led [defendant] to conclude that Sackrule was not well suited to manage other employees."³ Following Sackrule's reassignment plaintiff reported directly to Grant.⁴ On January 1, 2011, Ashley Diaz-Granados assumed Sackrule's former position.⁵ In March of 2011 plaintiff received a "Low Successful" performance rating for 2010.⁶ Diaz-Granados delivered the "Low Successful" performance rating to plaintiff, but Grant rated plaintiff's performance for 2010.⁷

Following receipt of her "Low Successful" rating, plaintiff complained of retaliation to defendant's HR Department.⁸ On August 26, 2011, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Workforce Commission, Number 460-2011-03748.⁹ Diaz-Granados rated plaintiff's 2011 performance as "Low Successful."¹⁰ Plaintiff does not disagree with her 2011 performance rating, but believes that she "would not have been low successful had [she] not been through ten years of discrimination, emotional abuse, hostile work environment and all those things."¹¹ Plaintiff remains employed by defendant and has a positive work relationship with Diaz-Granados.¹²

II. Standard of Review

Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed. R. Civ. P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). TheSupreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (quoting Celotex, 106 S.Ct. at 2553-2554).

If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S.Ct. at 2553-2554). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Unsubstantiated assertions are not competent summary judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 115 S.Ct. 195 (1994). The nonmovant is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim.Id. at 1537. District courts are under no duty "to sift through the record in search of evidence to support a party's opposition to summary judgment." Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 113 S.Ct. 98 (1992)). Factual controversies are to be resolved in favor of the nonmovant, "but only when . . . both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

III. Analysis

Plaintiff alleges that defendant discriminated against her on the basis of sex by providing her unequal compensation and promotional opportunities provided to her male peers, and retaliating against her for complaining of sex discrimination by evaluating her 2010 performance as "Low Successful" in violation of both federal law (Title VII and the LLFPA) and state law (TCHRA). Defendant argues that it is entitled to summary judgment on all of plaintiff's claims either because they are time-barred or because plaintiff is unable to cite evidence capable of establishing that she has been subjected to sex discrimination or retaliation.

A. Defendant Is Entitled to Summary Judgment on Plaintiff's Claims for Unequal Compensation and Failure to Promote

Plaintiff alleges in her Original Complaint that

11. . .despite her exceptional performance she has, on numerous occasions, witnessed male employees that performed the same job she and other females did, had fewer responsibilities, less experience, and lesser performance, paid more than her and her female peers, promoted more rapidly, and praised and recognized muchmore frequently, receiving additional bonuses and compensation as a result.

12. Favored treatment toward males evidences Defendant's discriminatory practices. However, the gap between male and female compensation, benefits, recognition and promotion is further widened by Defendant's long-term discriminatory technique of giving Plaintiff and other females lower performance ratings in annual reviews than comparable or lesser male performers, causing further separation between what females are paid versus males, despite superior performance history that can be objectively measured.

. . .

15. Plaintiff's being denied promotions and pay while other male employees with equal or lesser performance, tenure, or any other standard of measurement in the workplace, were and are awarded them — caused Plaintiff to be more vocal in her complaints of disparate treatment.

16. Her complaints led to retaliation. . .

. . .

20. Plaintiff sought help within Eli Lilly to be treated equally, but her complaints did not draw any investigation, but only further retaliation. In early 2011, as her relationship with Defendant's upper management continued to erode, Plaintiff was eligible for a bonus of tens of thousands of dollars. She had performed at an outstanding level and was clearly qualified to receive it. However, her manager made sure she did not by delivering her a poor review.

21. The poor review was given solely because Plaintiff had consistently complained about her mistreatment and the mistreatment of other women inside Eli Lilly & Company.¹³

Defendant argues that it is entitled to summary judgment on claims that plaintiff has asserted for unequal compensation andpromotional opportunities or failure to promote because all claims based on discrete acts that occurred before October 28, 2010, i.e., over 300 days before plaintiff filed her administrative charge of discrimination, are time-barred. Alternatively, defendant argues that it is entitled to summary judgment because plaintiff cannot establish a prima facie case for unequal compensation, unequal promotion opportunities, or failure to promote.

1. Applicable Law

(a) Title VII and TCHRA

Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). The TCHRA similarly prohibits employers from discriminating against an employee on the basis of sex. Tex. Lab. Code §§ 21.051, 21.055. Claims brought pursuant to Title VII and the TCHRA are governed by the same legal and evidentiary standards. See Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (citing Mission Consolidated Independent School District v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012)). See also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010) (recognizing that "[o]ne express purpose of the [TCHRA] is to 'provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.'"). A claim of employmentdiscrimination can be proven through direct or circumstantial evidence. Russell v. McKinnev Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). If there is no direct evidence of discrimination, courts apply the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973). See Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir. 2007). The McDonnell Douglas framework requires the plaintiff to demonstrate a prima facie case of discrimination; then shifts the burden to the defendant to articulate a...