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December 11, 2000


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 position.

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.

Plaintiff contends that, in the period between her initial inquiry regarding her salary (September 27) and her resignation (November 1), she was subjected to hostility and was ostracized by her employer. Plaintiff cites "coldness," a failure to acknowledge her presence, the closing of office doors, and a lack of communication as examples of the treatment she experienced. Plaintiff alleges that this treatment began upon defendant's receipt of her September 27 memo and continued until conditions became so intolerable that she gave notice of her resignation. There was no change in plaintiff's pay or job responsibilities after her October 3 allegation of racial discrimination, but according to the plaintiff, one task was reassigned from plaintiff to O'Shea after plaintiff announced on October 21 her intention to quit.


I. Standard of Review

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).

II. Discrimination

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. ...

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