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Powell v. American Red Cross

June 13, 2007

TONIA POWELL, PLAINTIFF,
v.
AMERICAN RED CROSS, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle

MEMORANDUM OPINION

Plaintiff Tonia Powell has sued her former employer, the American Red Cross ("defendant" or the "Red Cross"), asserting claims for violations of D.C. Human Rights Act ("DCHRA"), D.C. Code § 2-1401 et seq., and the D.C. Wage and Hour Law, D.C. Code § 32-1001 et seq., as well as a claim for breach of contract. Defendant has filed a motion for summary judgment as to all of plaintiff's claims. Plaintiff has moved for partial summary judgment on her claim for overtime compensation under the D.C. Wage and Hour Law, limited to the issue of liability. For the reasons set forth herein, the Court will grant defendant's motion and deny plaintiff's motion.

BACKGROUND

Plaintiff, a registered nurse, was hired as a "Wellness Associate" (also known as an "Occupational Health Nurse" or a "Wellness Nurse II") in the Wellness Unit of the American Red Cross national headquarters in November 2004. (Def.'s Ex. 4.) At that time, there were two other employees in the Wellness Unit: Jane Davis, who also held the position of Wellness Associate, and Ken Thiel, the supervisor of the Unit.*fn1 (Pl.'s Opp'n Ex. 1 ["Powell Dep."] at 44, 49; see also Def.'s Reply Ex. 2.) Plaintiff is African-American. (Pl.'s Opp'n at 3.) Both Ms. Davis and Mr. Thiel are Caucasian. (Pl.'s Opp'n Ex. 3 ["Powell Decl."] ¶¶ 9, 10.)

As a Wellness Associate, plaintiff spent a majority of her time on matters relating to the deployment of Red Cross Armed Forces Emergency Services ("AFES") personnel overseas. (Powell Dep. at 126-28; see also Pl.'s Opp'n Ex. 5 ["Shearer Dep."] at 44-45.) Plaintiff's AFES responsibilities concerned the medical part of the deployment process. (Powell Dep. at 77.) She collected and reviewed medical records for individuals being deployed to determine whether the individual met the medical requirements for deployment under the applicable military guidelines. (Id. at 36-37, 76-77.) She kept track of who was scheduled to be deployed and what stage each person was at in his or her physical assessment, including maintaining a spreadsheet with this information. (Id. at 36, 43-44; see also Powell Decl. ¶ 6.) She also briefed and debriefed personnel in connection with their deployments, consulted on medical issues that arose while personnel were overseas, informed personnel when their next physicals were due, and maintained the AFES personnel files. (Powell Dep. at 35-39, 69-72; Powell Decl. ¶ 6; Def.'s Ex. 15.) In addition to her AFES work, plaintiff's job responsibilities included providing first aid for injured employees; filing worker's compensation claims; performing ergonomic assessments; health education and counseling; blood pressure monitoring; cleaning the resting/sleeping and lactation rooms and tracking usage of those rooms; stocking the first aid boxes located throughout the Red Cross national headquarters; ordering and stocking office and medical supplies; dispensing educational materials; and managing the files. (Powell Dep. at 33-35, 40-41, 45-47, 82; Pl.'s Opp'n Ex. 2 (Response to Interrogatory No. 1).) The AFES work, however, "always came first." (Powell Dep. at 145.)

In January 2005, Jane Davis, the other Wellness Associate, resigned from the Red Cross (id. at 48-49), and her position was not filled due, in part, to budgetary considerations. (Shearer Dep. at 59.) When Ms. Davis left, plaintiff's workload increased, but she continued to spend a majority of her time on her AFES-related work. (See Powell Dep. at 128-29.)*fn2 Plaintiff estimates that she worked fifteen hours per week of overtime as a result of Ms. Davis's departure. (Pl.'s Opp'n Ex. 2 (Response to Interrogatory No. 24).) Because plaintiff's position was classified as exempt by the Red Cross, she did not receive any additional compensation for her overtime hours.

Plaintiff's workload again increased when her supervisor, Ken Thiel, resigned from the Red Cross in March 2005, leaving plaintiff as the only employee in the Wellness Unit. (Powell Dep. at 55.) Because the Red Cross was contemplating the elimination of the Wellness Unit at that time, Mr. Thiel's position also was not filled. (Shearer Dep. at 65-66.) Following Mr. Thiel's departure, plaintiff was assigned some of his former duties, including his International Services work. (Powell Dep. at 55-56; Shearer Dep. at 63.) This work was similar to her AFES work in some respects and included obtaining and reviewing physical examination reports for International Services personnel being deployed overseas to make sure that there were no limitations, advising personnel regarding immunizations, conducting briefings and debriefings of personnel, and maintaining the files. (Powell Dep. at 56-57, 64-71; Pl.'s Opp'n Ex. 2 (Response to Interrogatory No. 2); Shearer Dep. at 44, 63.) After Mr. Thiel resigned, plaintiff also assumed responsibility for preparing OSHA reports regarding worker's compensation injuries, consulting on ADA issues, assisting the FMLA benefits nurse with medical questions, and updating policy and procedure binders (Powell Dep. at 56-58, 60-63, 89; Pl.'s Opp'n Ex. 2 (Response to Interrogatory No. 2)); however, Anna Shearer, who supervised plaintiff from March 2005 to June 2005, testified that the medical record review work took up fifty percent of her time during this period. (Shearer Dep. at 44-45, 47; Pl.'s Mot. at 13.) Plaintiff estimates that she was required to work an additional twelve hours of overtime per week as a result of Mr. Thiel's departure, for a total of twenty-seven hours of overtime per week. (Pl.'s Opp'n Ex. 2 (Response to Interrogatory No. 24).)

In 2004 and 2005, the Red Cross conducted a "Core Services Analysis" in an effort to "address the financial challenges of national headquarters and set the course for the next decade." (Defs.' Exs. 17, 18.) As part of a corporate restructuring undertaken as a result of this analysis, the Red Cross decided in May 2005 to eliminate the Wellness Unit, effective July 1, 2005. (Def.'s Ex. 18.) The Red Cross announced its plans to close the Wellness Unit to all national headquarters staff via email on May 11, 2005 (id.), and plaintiff learned of this decision the following day. (Def.'s Ex. 6 at 152; see also Shearer Dep. at 70.) Plaintiff thereafter met with Ms. Shearer, Senior Director of Employee Benefit and Retirement Programs, and Bill Malfara, Vice President of Disaster Services, and was offered a position as a "Staff Health Nurse" (also known as a "Wellness Nurse III") with Red Cross Disaster Services, in which she would continue to have responsibility for the AFES-related work she had been doing as a Wellness Associate.

(Shearer Dep. at 75-76; Powell Dep. at 156-57.) The Staff Health Nurse position was a level 3 staff position and had a higher salary range than the Wellness Associate position, which was a level 2 staff position. (See Shearer Dep. at 77.)*fn3 Because the salary ranges for the positions overlapped, however, plaintiff's then-current salary of $57,096 was within both ranges. (Compare Def.'s Ex. 4, with Def.'s Exs. 22, 23.)

After the meeting, plaintiff requested an opportunity to discuss compensation with Mr. Malfara, who referred the issue to the Human Resources department. (Def.'s Ex. 20.) On May 15, 2005, Carol Miller, Senior Director of Client Services and Equal Employment Opportunity, informed plaintiff via email that she was being offered a "same or similar position" with the Red Cross as a result of the elimination of her former position and that her salary would "remain unchanged" as a result of the transfer. (Id.; Powell Dep. at 205.)

To get a better sense of the responsibilities of the new position, plaintiff spent a day with Carolyn Williams, a nurse who had been working in Disaster Services in a volunteer capacity. (Powell Dep. at 159-60, 169-70, 348-49.) Believing that the new position involved increased responsibility and in light of the higher salary range for that job, plaintiff then went to talk to Rick Pogue*fn4 on May 20, 2005, to discuss the pay difference in the positions. (Powell Dep. at 249-50; see also Pl.'s Opp'n Ex. 10.) According to plaintiff, Mr. Pogue looked the two jobs up on his computer, saw that there was a difference in pay grades, and said that he would have Al Vinson, Vice President of Human Resource Operations, look into the matter. (Powell Dep. at 197-98, 251; see also Pl.'s Opp'n Ex. 10.) Although Mr. Vinson did so, he did not get back to plaintiff right away.*fn5 (See id. (May 31, 2005 email from plaintiff to Rick Pogue indicating that she had not yet heard from Al Vinson and asking whether there had been "any clarification of the compensation for the Staff Health Nurse position").)

On June 2, 2005, plaintiff was notified that Mr. Malfara needed to know by noon that day whether she was going to accept the position with Disaster Services. (Def.'s Exs. 25, 30.) Plaintiff responded that she had not received a final answer regarding the salary for the position following her discussion with Mr. Pogue, and that she could not accept the position before a final salary determination had been made. (Def.'s Ex. 25.) Plaintiff emailed Mr. Pogue, indicating that she was still waiting to hear back from him or Mr. Vinson about compensation. (Def.'s Ex. 30.) Later that day, Mr. Vinson called plaintiff and informed her that although there was a $5,000 salary difference, she would not receive an increase in salary. (See Powell Dep. at 218, 255-56, 258-59; Def.'s Statement of Undisputed Facts ¶47; Pl.'s Statement of Disputed Facts ¶ 47.) Defendant asserts, and plaintiff does not dispute, that she declined the Wellness Nurse III position on June 2, 2005. (Def.'s Statement of Undisputed Facts ¶ 48; see also Def.'s Exs. 25, 27.) Plaintiff understood that her position as a Wellness Associate would be eliminated after June 30, 2005, and that she would no longer have a job with the Red Cross after that date, if she did not accept the Staff Health Nurse position. (See Def.'s Ex. 25; Powell Dep. at 262.)

On June 10, 2005, the Red Cross sent plaintiff a letter indicating that her position would be eliminated as a result of the restructuring of national headquarters effective at the close of business on June 30, 2005.*fn6 (Def.'s Ex. 27.) The letter also indicated that because plaintiff had declined the offer of a comparable position, she was not eligible for any additional salary and benefits under the Red Cross's severance policy. (Id.) Plaintiff disagreed that the Staff Health Nurse position she had been offered was comparable to her position as a Wellness Associate and requested that Human Resources management review the positions and reconsider the decision to deny her severance pay. (Def.'s Ex. 28.) The Human Resources department looked into plaintiff's concerns but concluded that the positions were comparable within the meaning of the severance policy. (Id.) Plaintiff's employment with the Red Cross ended on June 30, 2005. (See Def.'s Ex. 27; Powell Decl. ¶ 2.)

On June 9, 2006, plaintiff filed a complaint in D.C. Superior Court, asserting claims for race discrimination and retaliation pursuant to the DCHRA, seeking overtime pay under the D.C. Wage and Hour Law, and alleging breach of contract. Plaintiff filed an amended complaint the following day, and defendant removed the case to this Court on June 27, 2006.

LEGAL ANALYSIS

I. Summary Judgment Standard

A motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255; see also Wash. Post Co. v. U.S. 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 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in its favor. Laningham v. U.S. 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 249-50 (internal citations omitted). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998) (internal citation omitted), aff'd, No. 99-5126, 1999 WL 825425 (D.C. Cir. Sept. 27, 2000).

II. D.C. Human Rights Act Claims

A. Statute of Limitations

Defendant first argues that plaintiff's race discrimination claim is barred by the DCHRA's one-year statute of limitations. (Def.'s Mot. at 12-13.) A claim under the DCHRA must be filed "within one year of the unlawful discriminatory act, or the discovery thereof." D.C. Code § 2-1403.16(a). Since plaintiff filed her complaint on June 9, 2006, and since she does not contend that the discovery rule applies, her discrimination claim is barred if the allegedly discriminatory conduct occurred prior to June 9, 2005.

Plaintiff argues that the discriminatory conduct is the Red Cross's termination of her employment when she would not accept the Staff Health Nurse position at the same rate of pay she had been receiving as a Wellness Associate. (Pl.'s Opp'n at 27-28.) According to plaintiff, this discriminatory conduct did not occur until her employment with the Red Cross ended on June 30, 2005, because until that date, defendant had "the opportunity to meet [plaintiff's] demand for continued employment at a fair, nondiscriminatory salary." (Id. at 28.) The Court cannot agree.

To the extent that plaintiff is challenging the refusal of the Red Cross to offer her a higher salary for the Staff Health Nurse position, the discriminatory conduct occurred, and the statute of limitations began to run, no later than June 2, 2005, when the Red Cross notified plaintiff of its final decision regarding the salary issue. It is undisputed that plaintiff was initially informed on May 15, 2005, that there would be no pay increase associated with the new job. (Def.'s Ex. 20; Def.'s Statement of Undisputed Facts ¶ 41.) Plaintiff continued to pursue a higher salary for the position thereafter, meeting with Rick Pogue, who told her that he would have Al Vinson look into the matter. (Powell Dep. at 197-98, 249-51; Pl.'s Opp'n Ex. 10; Def.'s Ex. 30.) When plaintiff did not hear back from Mr. Vinson immediately, she continued to follow up with Mr. Pogue until June 2, when Mr. Vinson called her and confirmed that she would not receive an increase in pay. (Pl.'s Opp'n Ex. 10; Def.'s Ex. 30; Powell Dep. at 218, 255-56; Def.'s Statement of Undisputed Facts ¶ 47; Pl.'s ...


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