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ROWE v. KIDD

February 16, 1990

PAUL R. ROWE, Plaintiff,
v.
JAMES KIDD and CONGRESSIONAL QUARTERLY, INC., Defendants


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 On November 10, 1988, Plaintiff Paul E. Rowe filed the complaint in this action alleging, inter alia, that Defendants, Congressional Quarterly, Inc. and James Kidd, violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, by disciplining him and terminating his employment. After Plaintiff obtained leave from this Court to amend his complaint several times, and after Defendants moved to dismiss, this Court issued a September 22, 1989 Order which set forth the scope of the complaint. As a result, the Third Amended Complaint now contains five causes of action: disparate treatment and impact under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., intentional infliction of emotional distress, breach of implied-in-fact contract, and promissory estoppel. This matter is before the Court pursuant to Defendants' motion for summary judgment.

 I. DISPARATE TREATMENT

 The substantive law defines which facts are material. Liberty Lobby, 477 U.S. at 248. The essential elements of a Title VII case are set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). To state a prima facie case the record facts must show that: (1) Plaintiff is a member of a racial minority; (2) he was qualified for continued employment and was satisfying the normal requirements of his job; (3) he was terminated; and (4) either he was replaced by a nonminority employee, or nonminority employees with comparable qualifications and work records were not terminated. McDonnell Douglas, 411 U.S. at 802; see also Hughes v. Chesapeake and Potomac Tel. Co., 583 F. Supp. 66, 69 (D.D.C. 1983); Keller v. Association of Am. Medical Colleges, 644 F. Supp. 459, 462 (D.D.C. 1985), aff'd, 256 U.S. App. D.C. 89, 802 F.2d 1483 (D.C.Cir. 1986); Tickles v. Hodel, 40 EPD (CCH) P 36,262 (D.D.C. 1986).

 The burden of proof and of production is well-established. See Burdine, 450 U.S. at 252-56; McDonnell Douglas, 411 U.S. at 792. Plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of employment discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978). If Plaintiff can establish a prima facie case, the burden shifts to the Defendant to articulate a legitimate, nondiscriminatory reason for its actions; this burden is merely one of production, not of persuasion. Burdine, 450 U.S. at 254-55; Cuddy v. Carmen, 246 U.S. App. D.C. 25, 762 F.2d 119, 123 (D.C.Cir. 1984). Once the Defendant articulates a nondiscriminatory reason for its actions, the Defendant is entitled to judgment unless Plaintiff can prove by a preponderance of the evidence that the proffered reason is simply a "pretext" or coverup for racial discrimination. Burdine, 450 U.S. at 256. Plaintiff must prove that the Defendant's proffered explanation is "unworthy of credence." Id. Plaintiff's burden to establish a pretext "now merges with the ultimate burden of persuading the court that he has been the victim of intentional discrimination." Id. Thus, the burden of persuasion does not shift at any point to Defendant, but remains throughout upon Plaintiff who has the ultimate burden of proving that the Defendant discriminated against him. McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783 (D.C.Cir. 1984).

 Based on the undisputed facts in the record of this case Plaintiff is unable to state a prima facie case of disparate treatment. *fn1" It is not disputed that Plaintiff is a member of a minority group and that he was terminated, thus establishing two elements of a prima facie case. However, as to the remaining elements which are essential to Plaintiff's case and on which Plaintiff would bear the burden of proof at trial, Plaintiff has failed to make a showing to establish their existence and summary judgment is accordingly mandated in favor of Defendants. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Plaintiff concedes that he did not meet the performance standards established by his employer. See UNDISPUTED FACTS 30. However, Plaintiff claims that nonminority employees with comparable qualifications and work records were treated differently than he was. The undisputed facts of record do not support his claim.

 Plaintiff was employed as one of four sales representatives by Defendant CQ in its Washington Alert Service Division from March 3, 1986 through August 31, 1987. On or about May 4, 1987, Defendant Kidd was hired as WAS's sales manager, responsible for supervising and directing the activities of the sales representatives. During May 1987, Defendant Kidd began to develop specific strategies to improve the WAS sales performance. Defendant Kidd determined that one means by which to improve sales performance would be to present the WAS product more frequently to prospective customers. Accordingly, he placed importance on pre-sale activity, specifically, the number of appointments a sales representative scheduled and the number of proposals that a sales representative submitted. UNDISPUTED FACTS 13. *fn2"

 Defendant Kidd established monthly "foundational," or minimum, performance standards for (1) sales appointments, (2) proposals and (3) new unit sales. The monthly standards required 32 appointments, 12 proposals, and 4 new unit sales. Plaintiff and the other sales representatives reviewed the standards with Defendant Kidd and Plaintiff concurred that the standards were reasonable and achievable. UNDISPUTED FACTS 17. The standards became effective as to Plaintiff and two other employees, Waldo Tibbetts and Dennis Cronley, on June 1, 1987. A fourth sales representative, Kharry Wolinski, was not placed on the standards until July. UNDISPUTED FACTS 18.

 In the month of June, Plaintiff failed to meet each of these three standards by a large margin. He was the only one who failed to meet all three of the standards. Plaintiff achieved 37.5% of his appointments (12 of 32) and 25% of his proposals (3 of 12). In contrast, Tibbetts achieved 112.5% of his appointments (36 of 32) and 91.6% of his proposals (11 of 12). Cronley achieved 62.5% of his appointments (20 of 32) and 100% of his proposals. UNDISPUTED FACTS 20.

 As a result of Plaintiff's poor performance, Defendant Kidd gave Plaintiff a memorandum warning him that his performance was well below standard. UNDISPUTED FACTS 21. Defendant also gave Cronley a memorandum informing him that his appointments were below standard. UNDISPUTED FACTS 24.

 During the first two weeks of July 1987, Plaintiff had only three appointments. UNDISPUTED FACTS 23. Defendant Kidd met with Plaintiff on or about July 15 to discuss Plaintiff's performance level, and followed that meeting with a memorandum to Plaintiff expressing his concern. UNDISPUTED FACTS 23. At the end of July, Plaintiff was once again far below each of the three performance standards and was the only sales representative who failed to meet those standards. Plaintiff achieved 59% of his appointments (19 of 32) and 50% of his proposals (6 of 12). In contrast, Cronley had 134% of his appointments (43 of 32) and 150% of his proposals (18 of 12). Tibbetts had 121% of his appointments (39 of 32) and 150% of his proposals (18 of 12). Wolinski, even though she was on vacation for part of July, was able to achieve 84% of her appointments (27 of 32) and 150% of her proposals (18 of 12). UNDISPUTED ...


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