U.S. Equal Employment Opportunity Comm'n v. CTI Global Solutions, Inc.

113 Fair Empl.Prac.Cas. (BNA) 318

815 F.Supp.2d 897

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

v.CTI GLOBAL SOLUTIONS, INC.

Civil Action No. DKC 09–2570.

United States District Court, D. Maryland.

Sept. 2, 2011.

Debra Michele Lawrence, Eric Stephen Thompson, Maria Salacuse, U.S Equal Employment Opportunity Commission, Baltimore, MD, for U.S. Equal Employment Opportunity Commission.

Jeanne M. Phelan, DLA Piper LLP (U.S), Baltimore, MD, for CTI Global Solutions, Inc.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this employment discrimination action are the motion for partial summary judgment filed by the Plaintiff Equal Employment Opportunity Commission (“EEOC”) (ECF No. 25) and the cross-motion for partial summary judgment filed by Defendant CTI Global Solutions, Inc. (ECF No. 30). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiff's motion will be granted in part and denied in part, and Defendant's cross-motion will be denied.

I. BackgroundA. Factual Background

The following facts are undisputed unless otherwise stated.

1. CTI Global Solutions and the ARC Project

Defendant is a government contractor and recruiting company that has supplied staff for government projects since 1989. (ECF No. 25–2, Whitfield Dep., at 26; ECF No. 25–1, at 2). Employees earn wages only if Defendant staffs them on contracting assignments. (ECF No. 25–4, Moore Dep., at 69). Defendant contracted with the FBI to prepare 20 million documents at the FBI's Alexandria Records Center (“ARC”) for shipment, and in September 2008, Defendant began staffing its employees on this long-term, full-time project. (ECF No. 25–3, Carroll Dep., at 45; ECF. No. 25–1, at 2). The advertisement that Defendant posted for this position stated that it required the ability to lift 20 pounds. (ECF No. 25–4, Moore Dep., at Ex. 17). The job description of the position that employees received at orientation, however, required the ability to lift 25 pounds and to climb ladders. (ECF No. 25–4, at 105). Although Defendant neither solicited information on these criteria in employee applications nor tested its employees to verify their ability to lift and climb, it did inquire of their ability to perform these functions during ARC project orientation. ( Id. at 59; ECF No. 25–2, at 39).

2. Rita Tolliver's Placement and Removal

Defendant hired Rita Tolliver to staff an open ARC project position in October 2008, and Tolliver was “visibly pregnant” at that time. (ECF No. 25–5, Tolliver Decl., ¶¶ 1–3). During Tolliver's orientation, Rodney Whitfield, Defendant's Chief Financial Officer (“CFO”), observed Tolliver's pregnancy and requested that she accompany him outside the orientation room. ( Id. at ¶¶ 6–7; ECF No. 25–2, at 48). Whitfield confirmed Tolliver's pregnancy before removing her from the ARC project due to his concerns for Tolliver and her unborn child if she performed the lifting and climbing functions of her position (ECF No. 25–2, at 62; ECF No. 25–3, Ex. 3). Tolliver informed Whitfield that “this was [her] fourth pregnancy,” that she “knew [her] limitations,” and that she “was capable of performing the work.” (ECF No. 25–5 ¶ 9). Whitfield, however, insisted on Tolliver's removal, noting that Tolliver was the “same as a boxer who gets knocked out—who all of a sudden says I'm fine to the referee and the referee says, no, I don't think you can.” (ECF No. 25–2, at 74).

Following Tolliver's removal from the ARC project, Whitfield informed Dr. Dee Carroll, Defendant's President and Chief Executive Officer (“CEO”), of these events, and Carroll concurred in his decision. (ECF No. 25–3, Ex. 3). Although Whitfield and Carroll subsequently prepared a position statement documenting the potential health risks of Tolliver's position for her health and the health of her unborn child, Carroll acknowledged that these medical concerns were “irrelevant” to Tolliver's removal, which occurred solely due to her pregnancy. ( Id.; ECF No. 25–3, at 82; ECF No. 25–1, at 12).¹ Louvenia Williams, Defendant's legal counsel, then contacted Tolliver to inform her that Defendant had concluded that the lifting and climbing requirements of her position would be too “strenuous” during pregnancy and offered to meet with Tolliver to discuss other placement options. (ECF No. 25–3, Ex. 3). This meeting, however, never took place, and Carroll later conceded that no other available positions existed on which to staff Tolliver at that time. ( Id.; ECF No. 25–3, at 64).

3. Anje Proctor and Alfre Tisdale's Placement and Removal

Anje Proctor and Alfre Tisdale applied for positions on the ARC project in late 2008 and early 2009, respectively. (ECF No. 25–9, Proctor Decl., ¶ 8; ECF No. 25–8, Tisdale Decl., ¶ 12). Although the job descriptions for which Defendant hired them included climbing and lifting duties, Proctor and Tisdale rarely, if ever, engaged in either of these activities. (ECF No. 25–9 ¶ 5; ECF No. 25–8 ¶ 5). Both women became pregnant in the spring of 2009. (ECF No. 25–9 ¶ 6; ECF No. 25–8 ¶ 7).

Tisdale's physician recommended that she refrain from climbing ladders and lifting more than 15 pounds, and Tisdale subsequently submitted this request to Defendant in June 2009. (ECF No. 25–8 ¶¶ 8–10).² Defendant initially accommodated this request, during which time “everything ran smoothly,” no other employee had to lift or climb a ladder to aid her in performing her position, and Bernard Fisher, Defendant's program manager for the ARC project, had “no criticisms of her performance.” ( Id. at ¶ 11; ECF No. 25–11, Fisher Dep., at 46, 50).

At some point, Fisher informed Keith Moore, Defendant's Operations Manager, of Tisdale's work restrictions due to her pregnancy. (ECF No. 25–4, at 84–85). Although Defendant's interrogatories later identified two ARC project employees with lifting and climbing restrictions whom it had “temporarily” accommodated, Elaine Wright, an ARC project program manager supervised by Fisher, asserted that Defendant had not previously placed any ARC project employees on light duty. (ECF No. 31–1, at 11–12; ECF No. 30–4, Wright Dep., at 73–74). Fisher simultaneously reported Proctor's pregnancy to Moore “out of fear” for her safety. (ECF No. 25–11, at 43–44).

Moore removed Tisdale and Proctor from the ARC project on July 8, 2009, informing Tisdale that her removal occurred due to her pregnancy and “for fairness,” and informing Proctor that “pregnant women could not work in the FBI file room.” (ECF No. 25–8 ¶ 12; ECF No. 25–9 ¶ 8). Tisdale and Proctor returned to Defendant's office for reassignment, but Defendant did not immediately reassign either employee to a full-time position. (ECF No. 25–8 ¶ 13; ECF No. 25–9 ¶ 9).

4. Mitigation Efforts of Removed Employees

Following their removal from the ARC project, Tolliver, Proctor, and Tisdale each sought new employment. Tolliver first attempted to meet with Whitfield and Carroll to discuss her removal and potential reassignment. (ECF No. 25–5 ¶¶ 12–13). When Whitfield refused to provide written confirmation of the meeting date, Tolliver refused to attend the meeting. ( Id. at ¶¶ 14–15). Carroll later conceded, however, that Defendant had no positions “in mind” for Tolliver at the scheduled meeting time. (ECF No. 25–3, at 64). Tolliver also “networked heavily, posted resumes online, applied for numerous positions, and attended job fairs.” (ECF No. 25–5 ¶ 23). She obtained “sporadic” employment translating for attorneys representing a prisoner at Guantanamo Bay, and, although the work “forced [her] to be away” from her family, she accepted the position because her family “could not afford for [her] to be without paid work.” ( Id. at ¶ 17).

Shortly after her removal from the ARC project in July 2009, Proctor posted resumes on CareerBuilder.com and Monster.com. (ECF No. 25–9 ¶ 12). Proctor also asserts that she accepted temporary one-day assignments that Defendant offered her because she “needed to have an income and no better paying job was available.” Defendant contests this assertion, submitting an affidavit from Carroll contending that Proctor declined not only many of the proffered temporary assignments, duration unspecified, but also a long-term placement at the Pentagon that would have begun on October 1, 2009. (ECF No. 30–7, Carroll Aff., ¶¶ 4–5). Proctor ultimately took a higher paying job with another staffing agency during October 2009, and she seeks no back pay beyond that time. (ECF No. 25–9 ¶ 13; ECF No. 25–1, at 9).

Tisdale has applied for more than 100 available positions and participated in networking activities since her removal from the ARC project. (ECF No. 25–8 ¶ 20). She also enrolled in information technology classes to improve her chances of obtaining employment. ( Id. at ¶ 22). Both parties agree that Defendant offered Tisdale a limited number of temporary employment opportunities following her removal, but the record is unclear regarding the duration of the temporary employment and number of offers. (ECF No. 25–1, at 8; ECF No. 30–1, at 4). It appears that Tisdale declined many of these offers. (ECF No. 30–7 ¶ 6).

Defendant offered Tisdale a long-term placement at the Pentagon in October 2009, and Tisdale accepted the position. (ECF No. 25–8 ¶ 16). Tisdale asserts that the Pentagon placement paid less than her position on the ARC project, but Defendant contests this assertion, citing Carroll's affidavit. ( Id. at ¶ 17; ECF No. 30–7 ¶ 7). Tisdale earned $16/hour, with benefits, on the ARC project, while she earned $17.24/hour, without benefits, at the Pentagon. (ECF No. 31–2, Tisdale Decl., at 1). Tisdale took unpaid leave under the Family and Medical Leave Act in December 2009 and did not return to her placement at the Pentagon. (ECF No. 25–8 ¶ 19; ECF No. 30–1, at 4). At the time Tisdale took leave, she had not received some of her...