The opinion of the court was delivered by: Huvelle, District Judge.
Before the Court is defendant's motion for summary judgment,
plaintiff's opposition thereto, and defendant's reply. Plaintiff
Michelle Roberts, an African American female, claims that defendant The
Segal Company discriminated against her by paying her a lower salary
than a white woman hired shortly before she was hired and retaliated
against her after she complained about the disparity. Defendant argues
that there can be no inference of discrimination because there were two
different secretarial positions available at different salaries, the
salaries were established before the race of any applicant was known,
and the lower paying position was the only position available when
plaintiff was interviewed. Moreover, defendant contends that plaintiff
has failed to establish an adverse employment action, which is required
to establish a claim for retaliation. The issue before the Court is
whether the plaintiff has presented a prima facie case of discrimination
and retaliation/constructive discharge under Title VII. Upon
consideration of the pleadings and the record before us, this Court
concludes that plaintiff cannot prevail as a matter of law and therefore
summary judgment is granted as to all counts.
In January 1996, defendant The Segal Company advertised with NRI
employment agency a job opening for a secretarial position for Tom
Harter and Victor Pfeiffer, two consultants employed by defendant. The
last person employed in that position (the "Harter position") was paid
an annual salary of $32,000. Defendant set the salary for the open
position at $32,000 and advertised the job at that salary. In January
Lynn O'Shea became aware of the Harter position through the
NRI agency. Defendant did not immediately schedule an interview with
O'Shea, but called her back in late March 1996. Defendant interviewed
O'Shea on May 9, and again the following week. O'Shea was offered the
Harter position at $32,000 on or about May 17, 1996.*fn1 O'Shea
accepted the position immediately, gave her employer two-weeks notice,
and began work on June 3, 1996.
Sometime in April or early May 1996, another secretarial position with
David Blumenstein, who had recently become the head of the Washington
D.C. office, Stacey Carter, and Ann Cooper (the "Blumenstein position")
became available at The Segal Company. The Blumenstein position was
advertised at an annual salary of $30,000. Plaintiff learned of this
vacancy through an employment agency, which told her that there was one
position (the Blumenstein position) available with defendant, at a
salary of $30,000 per year. Roberts interviewed for the Blumenstein
position on May 28, 1996.*fn2 Defendant offered plaintiff the position
immediately and plaintiff accepted. Plaintiff began working with
defendant on June 10, 1996, never having interviewed for the Harter
position, which had already been filled at the time plaintiff was placed
in contact with defendant. At the time plaintiff interviewed with
defendant, there was only one available position — the $30,000 Blumenstein
Tammy White, the office manager who interviewed plaintiff, was
terminated in August 1996. At some point thereafter, White informed
plaintiff of the disparity between plaintiff's salary and O'Shea's
salary. On September 27, 1996, plaintiff wrote a memo to Blumenstein
and Rick Johnson, the acting office manager, to inquire why O'Shea was
being paid $2,000 more per year than she was. This memo made no
allegation of race discrimination. Having received no response,
plaintiff wrote another memo on October 3, 1996, this time to Howard
Fluhr, the President of The Segal Company. In this memo, plaintiff
claimed for the first time that, given the lack of response to her
concerns about the salary disparity, she believed the disparity was the
result of race discrimination.
The next day, October 4, 1996, Johnson wrote a memo to plaintiff
explaining that he and Blumenstein had been out of town, and that they
would meet with her as soon as possible to discuss the matter. That
meeting took place on October 15, 1996. Plaintiff was told at that
meeting that the reason that she was paid less than O'Shea was the
difference in their job responsibilities. She was assured that the
difference had nothing to do with race, and that the salary was
established without knowledge of the race of the person who would fill
it. Johnson sent plaintiff a memo on October 16, 1996, reiterating what
was said at this meeting. On October 21, 1996, plaintiff informed her
superiors that she was leaving her position with The Segal Company.
Plaintiff's last day at work was November 1, 1996.
Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted
if the pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits show that there is no genuine issue of material
fact, and that the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the
"evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505;
see also Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C.Cir. 1989).
The non-moving party's opposition, however, must consist of more than
mere unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). The non-moving party must provide evidence that
would permit a reasonable jury to find in the non-moving party's favor.
Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987).
"If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-250,
106 S.Ct. 2505 (citations omitted).
In order to state a prima facie case of discrimination under Title
VII, plaintiff must establish: (1) that she is a member of a protected
class; (2) that she suffered an adverse employment action; and (3) that
the unfavorable action gives rise to an inference of discrimination.
Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir. 1999). Where there is no
opportunity for an employer to discriminate, however, it is impossible
to infer discrimination. Cf. Daves v. Payless Cashways, Inc.,
661 F.2d 1022 (5th Cir. ...