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Pollard v. Quest Diagnostics

February 17, 2009

BRIDGET POLLARD, PLAINTIFF,
v.
QUEST DIAGNOSTICS, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, Bridget Pollard ("Pollard" or "Plaintiff"), an African-American female, brings the instant lawsuit against her previous employer, Defendant Quest Diagnostics ("Quest" or "Defendant"), alleging claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981 ("Section 1981"). Specifically, Pollard asserts a claim of disparate treatment based upon race and color in regard to allegations that Quest failed to promote Pollard while instead promoting a Caucasian male into a newly-created Project Manager position. Pollard also asserts a claim of retaliation based on allegations that Quest gave her an inferior performance evaluation because of her complaints of discriminatory treatment.

Currently pending before the Court is Defendant's Motion for Summary Judgment. As briefing on Defendant's motion is complete, the case is now ripe. After a searching review of the parties' briefing, the exhibits attached thereto, the relevant case law, and the entire record herein, the Court shall GRANT Defendant's Motion for Summary Judgment, for the reasons that follow.

I. BACKGROUND

A. Factual Background

In October of 2002, Pollard, an African-American female, was hired by American Medical Laboratories to work as a Medical Technologist at its medical laboratory facility located in Providence Hospital ("Providence") in Washington, D.C. Defendant's Statement of Material Facts ("Def.'s Stmt.") ¶¶ 2, 6.*fn1 Shortly thereafter, Quest*fn2 acquired the Providence medical laboratory facility from American Medical Laboratories. Id. ¶¶ 1, 2. Pollard continued working as a Medical Technologist at the Providence laboratory after it was acquired by Quest. Id. ¶ 2, 7.

As a Medical Technologist, both for American Medical Laboratories and for Quest, Pollard's responsibilities included performing assigned medical tests, maintaining laboratory areas and equipment, and ensuring that test systems were in control for each test performed. Id. ¶ 7. Her duties remained the same throughout her employment with Quest. Id. Pollard's duties also included performing functions related to Quest's Laboratory Information System ("LIS"), which is the computer system used in the laboratory in conjunction with the laboratory equipment to generate reports of test results. Plaintiff's Response Statement ("Pl.'s Resp.") ¶ 7; see also Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n"), Ex. B (Pollard Decl.) ¶ 2; Def.'s Stmt. ¶ 17. Pollard confirmed at her deposition, however, that her only experience with LIS was as a user of the system and that she had no experience with the creation, installation and/or maintenance of the system. See Defendant's Reply in Support of its Motion for Summary Judgment ("Def.'s Reply"), Ex. 5 (12/21/07 Pollard Dep.) at 131:3-132:15.

From 2002 to 2005, Pollard worked the third (overnight) shift at the Providence location and reported directed to Isabelita Aglipay. Def.'s Stmt. ¶ 9. In 2005, Pollard requested to work on a "PRN," or on-call as needed, basis so that she could attend school full-time, which request Quest granted. Id. ¶ 10. While working on a PRN basis, Pollard's work hours varied, and she worked for several different supervisors. Id. Subsequently, in or around March 2006, Pollard relocated to Raleigh, North Carolina and thereafter worked only occasionally for Quest. Id. ¶ 11. As of early October 2006, however, Pollard had not worked for Quest for several pay periods and her employment with Quest was therefore terminated on October 4, 2006, as a result of a routine audit Quest periodically conducts of all PRN employees, consistent with Quest policy.*fn3 Id. ¶ 12.

1. The Project Manager Position

In the spring of 2005, Quest decided to create an Information Technology Project Manager ("Project Manager") position at Providence. Id. ¶ 14. The Project Manager position was posted in mid-May of 2005, see Pl.'s Resp. ¶ 20; Pl.'s Opp'n, Ex. A ("Vacancy Announcement),*fn4 Quest made the position available to both internal and external applicants by announcing it on the internet, on Quest's internal intranet, and by posting it on the bulletin board in the Providence lab, Def.'s Stmt. ¶ 15. Harvey Vandenburg, the Administrative Director of the Providence Laboratory, and Richard Leap, Director of Information Technology, collaborated in selecting a candidate for the Project Manager position. Id. ¶ 19.

Vandenburg and Leap, together with Human Resources, composed a position description for the Project Manager position. Id.; Def.'s Reply, Ex. 7 (Leap Dep.) 21:5-8 (testifying that he, Vandenburg and Human Resources drafted position description); id., Ex. 6 (Vandenburg Dep.) 24:16- 25:14 (testifying that he and Leap drafted the position description with assistance from Human Resources). They used a prior position description for a similar Project Manager position as a starting template. See id. ¶ 20; Def.'s Reply, Ex. 6 (Vandenburg Dep. 24:19-25:4 (testifying that they used a template); Pl.'s Resp. ¶ 20 (denying only that the position description was composed at the time the vacancy was posted and not that Vandenburg and Leap used an incumbent Project Manager position description as the template).

According to Quest's policy, a written position description is required before an available position may be posted. Def.'s Stmt. ¶ 20. Quest asserts that Vandenburg and Leap composed a position description consistent with that policy. Id. Pollard, however, claims that the position description was not, in fact, composed until August 2005, well after the position was posted in May of 2005. Pl.'s Resp. ¶ 20. As support for this assertion, Pollard points to: (1) a copy of the position description at issue, which indicates the "Date Written" was August 22, 2005; and (2) testimony by Vandenburg, in which he stated: "So I would surmise the posting predated the finalization of the position description." Id.; see also Def.'s Mot., Ex. 8 (Project Manager Position Description); Pl.'s Opp'n, Ex. H (Vandenburg Dep.) at 49:5-6. As to the fact that the copy of the position description attached as Exhibit 8 to Defendant's Motion has a "Date Written" of August, 2005, Michael Knapp, Quest's Director of Employee Services, explained that "each time a job description is revised or updated on the computer system in any way, the date in the 'Date Written' section is updated to reflect the then current date.'" Def.'s Reply, Ex. 1 (Knapp Decl.) ¶ 6. Furthermore, Quest presents evidence that the position description, or at least a version of it, was composed as early as June 24, 2005. See id. ¶ 7 (showing that the position description at issue had been printed on June 24, 2005). Finally, both Vandenburg and Leap have confirmed that neither made any changes to the position description, nor are they aware of anyone else who made changes to the position description, after the interviews for the Project Manager position had begun. See Def.'s Reply, Ex. 2 (Vandenburg Decl.) ¶ 3; id., Ex. 3 (Leap Decl.) ¶ 3. Accordingly, there is, to some extent, a dispute as to the exact date on which the position description was created, but the Court concludes, for the reasons discussed below, infra 32-37, that such a dispute is not material.

Nonetheless, both parties agree that the Project Manager's primary responsibility was to coordinate and maintain a new upgrade to the LIS system that was to be installed in the near future. Id. ¶ 16. In particular, the "Essential Job Duties and Responsibilities" for the Project Manager position included, inter alia, the following technical aspects:

3. Collaborate with HIS personnel in maintaining database.

4. Facilitates LIS training and competency for all new and existing staff as new processes or procedures are added.

6. Provides necessary audit trail documentation of all changes and validations to LIS system to meet or exceed regulatory requirements, including but not limited to, annual calculations review, biannual patient report for Medical Director review, LIS upgrade documentation, LIS backup and transaction documentation. * * *

9. Monitor LIS performance and report outages or system degradation issues to appropriate channels.

Id. ¶ 21.The position description also provided that the minimum qualifications for the Project Manager position included: an educational background in Computer Science or Medical Technology, strong interpersonal skills, basic knowledge of laboratory skills, and experience testing or troubleshooting new or existing LIS systems.*fn5 Id. ¶ 22.In addition, Vandenburg and Leap both agreed that their preferred candidate would also have technical experience in LIS/laboratory instrument interfaces, LIS test file development, and LIS report maintenance and generation as well as experience training LIS users. Id. ¶ 23.

Pollard makes much of the fact that the vacancy announcement, as posted in May of 2005, provided only that the position's requirements included having a degree in medical technology or computer science, general laboratory knowledge, LIS functionalities, and LIS/HIS interface knowledge-and did not include the specific technical requirements set forth in the position description. See Pl.'s Resp. ¶ 22.; see also Pl.'s Opp'n, Ex. A (Vacancy Announcement). Michael Knapp, Quest's Director of Employee Services, explained, however, that: "The Job Posting Bulletin (i.e., the vacancy announcement to which Pollard refers) . . . does not and could not contain all of the elements of the job description for each position posted. Indeed, every job description for every job contains more requirements than the job posting does. The job posting simply contains a summary of some of the major requirements for the positions listed." Def.'s Reply, Ex. 1 (Knapp Decl.) ¶ 4.

Pollard applied for the Project Manager position and she, along with three other individuals, was subsequently selected by Vandenburg for a first-round interview. Def.'s Stmt. ¶¶ 24, 25. Specifically, Vandenburg selected: (1) Pollard, an African-American female; (2) Tuy Le, an Asian-American male; (3) Jane Kopley, a Caucasian female; and (4) Sean Townsend, a Caucasian male. Id. ¶ 26. Le, like Pollard, was an internal candidate. Id. Kopley and Townsend, however, were the only external candidates as well as the only white individuals who applied for the Project Manager position. Id.

As stated above, Vandenburg and Leap collaborated in selecting a candidate for the Project Manager position. Id. ¶ 19. Vandenburg was tasked with conducting the first round interviews and with making an initial determination as to the candidates' interpersonal skills, while Leap, who (as Director of IT) had more technical knowledge, was tasked with evaluating the candidates' technical experience. See id. ¶¶ 27-31; see also Def.'s Mot., Ex. 7, Pt. 2 (Vandenburg Dep.) 35:21-37:1.

Pollard was actually out of town on vacation at the time that Vandenburg attempted to contact her to schedule the initial interview. Id. ¶ 27. Vandenburg therefore left a note on the laboratory's bulletin board for Pollard to contact him. Id. However, because they worked different shifts, Pollard and Vandenburg had difficulty coordinating a time to meet for the interview. Id. Vandenburg ultimately was able to contact Pollard at home and thereafter conducted a telephone interview.*fn6 Id. Because the other three individuals did not have similar difficulties coordinating a time for an interview, Vandenburg conducted face-to-face interviews with Le, Kopley and Townsend. Id. ¶ 29. After interviewing each of the four candidates, Vandenburg concluded that each candidate displayed good verbal communication skills and therefore forwarded all four candidates' resumes to Leap. Id. ¶ 30.

Quest emphasizes that, prior to this interview, Pollard and Vandenburg had never had a formal conversation nor had they been formally introduced, and their interaction at Quest had been limited to occasional greetings in the hall. Id. ¶ 28. In addition, Pollard admitted at her deposition that she had no evidence, other than her own unsupported belief, that Vandenburg knew Pollard's race or color prior to their phone interview. Def.'s Mot., Ex. 2, Pt. 3 (Pollard Dep.) at 86:5-17. Pollard, however, now asserts in her Opposition that Vandenburg "was fully aware" of Pollard's race and, as support, directs the Court's attention to an "Applicant Flow Data" chart, which provides the racial and gender composition of all of the applicants for the Project Manager position. See Pl.'s Resp. ¶ 28 (citing Pl.'s Opp'n, Ex. D (Applicant Flow Data). Although the Applicant Flow Data chart does show that Pollard is "black," Pollard has failed to present any evidence that Vandenburg ever saw this chart.*fn7 See id.

Leap reviewed the resumes of all four candidates to determine whether each candidate possessed the technical knowledge necessary for the Project Manner position. Id. ¶¶ 30-31. Based upon his review of the candidates' resumes, Leap concluded that only Kopley and Townsend possessed the requisite technical experience and thus decided to interview only those two candidates.*fn8 Id. ¶ 31. Kopley had significant LIS experience in her previous position as an Automated Laboratory Services Manager at Holy Cross Hospital, where she had helped implement the new LIS upgrade, built new test files into the system and trained users. Id. ¶ 32. Townsend had been involved with the same project at Holy Cross, for which he developed interfaces between the laboratory instruments and the LIS, built the respiratory and clinic car components for Soft Lab, and trained users. Id. ¶ 34. Leap conducted both interviews with Kopley and Townsend over the telephone, and consequently-as Pollard admits-did not know the race of either candidate. Id.; Pl.'s Resp. ¶ 31.

As stated above, however, Leap declined to interview either Pollard or Le and, as is specific to Pollard, explained that he decided not to interview her because he believed she lacked significant LIS experience. Id. ¶ 34. As Leap had never met Pollard and therefore did not know her race, he based this decision solely on his review of her resume. Id. In particular, Leap concluded from his review of her resume that she did not have experience in "setting up the filing structure of a LIS, managing interfaces for producing or setting up the laboratory reports," which were the most important aspects of the job. Id. ¶ 35. Plaintiff also lacked any experience with the new LIS that Quest had chosen to install. Id. ¶ 36. Leap concluded that Pollard's LIS experience was simply comparable to that of a user of the system, and she therefore did not have the requisite experience to manage the new LIS upgrade and to train LIS users. Id. ¶ 37. Importantly, Pollard fully admits that LIS experience was critical to the Project Manager position and that she did not have such experience. Pl.'s Resp. ¶¶ 35-37. And, even more significantly, Pollard concedes that Leap declined to interview her because he believed that she lacked significant LIS experience and that Leap did not know her race, such that his decision not to interview her for the Project Manager position was based solely on her resume. Id. ¶ 34.

Although both Kopley and Townsend were qualified for the Project Manager position, Leap believed that Kopley was the better candidate based on her experience and knowledge.

Def.'s Stmt. ¶ 38. Quest therefore offered Kopley the position. Id. Kopley, however, ultimately declined to accept the Project Manager position. Id. Quest does not have a policy of re-posting positions after a top-ranked candidate declines when there is a second ranked candidate. Id. ¶ 39. Accordingly, as Townsend was the second most qualified candidate, Quest subsequently offered him the position. Id. Townsend accepted the offer and thereafter held the position of Project Manager.*fn9 Id. ¶ 40.

Significantly, Pollard acknowledged in deposition that Kopley's prior experience with the new LIS upgrade rendered her far more qualified for the Project Manager position than Pollard herself, and indicated that Quest's initial offer to Kopley was not discriminatory:

Q: Do you think [Kopley] was more qualified than you for the job?

A: I believe from -- Yes, that she had more qualifications than I had. Yes.

Q: So is it your belief, then, that the decision to initially offer the position to Ms. Kopley was not a discriminatory decision?

A: I believe that.

Def.'s Mot., Ex. 2, Pt. 3 (Pollard Dep.) 103:3-15 (emphasis added); Def.'s Stmt. ¶ 41. Similarly, Pollard admits that Townsend's qualifications, as provided in his resume, also rendered him more qualified for the Project Manager position.*fn10 Def.'s Stmt. ¶ 42; see also Def.'s Mot., Ex. 2, Pt. 3 (Pollard Dep.) 118:7-119:1 (acknowledging that Townsend's qualifications as set forth in his resume were superior). Indeed, Pollard admits that Townsend was the second most qualified candidate for the position, and that Quest offered him the position on that basis. Def.'s Stmt. ¶ 39; Pl.'s Resp. ¶ 39 (admitting Def.'s Stmt. ¶ 39).

Pollard initially complained to Michael Knapp, Quest's Director of Employee Services, about Quest's failure to promote her into the Project Manager position at some point in October of 2005. See Pl.'s Reply, Ex. E (10/24/05 Email from Knapp to Vandenburg). Thereafter, on November 29, 2005, Pollard filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") alleging race discrimination with respect to Quest's decision not to promote her into the IT Project Manager position. Def.'s Stmt. ¶ 49.

2. 2005 Performance Evaluation

Quest evaluates its employees annually. Id. ¶ 50. Generally, employees are provided written performance reviews, which include ratings of their performance in various categories. Id. Employees are also provided a final numerical score that corresponds to a specific overall performance rating category, with a lower score correlating to a higher overall rating: Outstanding (1.00 to 1.33); Excellent (1.34 to 2.33); Achieves Expectations (2.34 to 3.25); and Development Needed (3.26 to 4.00). Id. Ordinarily, an employee's immediate supervisor performs his or her evaluation. Id.

As is relevant here, Pollard received a performance evaluation in 2004. See id. ¶ 51. Because her then-immediate supervisor, Aglipay, was on medical leave, Pollard's annual performance review for the 2004 evaluation period was conducted by David Meeder, then-Administrative Director of the Providence Laboratory (i.e.,Vandenburg's predecessor), rather than her immediate supervisor. Id. Meeder gave Pollard an overall "Excellent" rating. Id. As a result of the "Excellent" rating, Pollard received a 4% merit increase. Id. ¶ 52.

Pollard also received a performance evaluation in 2005. See id. ¶ 53. The performance evaluation is dated January 12, 2006. See Def.'s Mot., Ex. 12 (2005 Performance Evaluation). Aglipay, Pollard's immediate supervisor, had returned from medical leave by this time, and therefore she prepared Pollard's 2005 performance evaluation, per Quest's general policy. Id. ¶¶ 50, 53. Vandenburg confirmed at deposition that he did not have input into Pollard's evaluation. Def.'s Reply, Ex. 6 (Vandenburg Dep.) at 71:20-22. Based upon her overall performance, Aglipay gave Pollard an initial numerical rating of 2.75, which corresponded to an overall rating of "Achieves Expectations." See Def.'s Stmt.¶¶ 53, 56; see also Def.'s Mot., Ex. 15 (Pollard 2005 Annual Performance and Development Review). Significantly, Pollard does not deny that Aglipay gave her the overall "Achieves Expectation" rating "[b]ased on her overall performance." Pl.'s Resp. ¶ 53 (admitting Def.'s Stmt. ¶ 53).

Pollard, however, subsequently voiced concerns to Aglipay regarding her 2005 performance evaluation rating, and, as a result, Aglipay agreed to improve Pollard's rating by 0.25 points to a 2.5 overall numerical score. Def.'s Stmt. ¶ 56. Although this was an improvement in the overall numerical score, Pollard's overall performance rating remained "Achieves Expectations," as that rating encompasses overall numerical scores from 2.34 to 3.25. See Def.'s Mot., Ex. 15 (Pollard 2005 Annual Performance and Development Review). Pollard did not voice any further objections to either Aglipay or to anyone else at Quest regarding her evaluation. Def.'s Stmt. ¶ 57. As Pollard admits, an "Achieves Expectations" rating reflects a satisfactory performance evaluation. Id. ¶ 54; Pl.'s Resp. ¶ 54. As a result of the 2005 performance evaluation, Pollard received a 3% merit increase.*fn11 Def.'s Stmt. ¶ 59.

Aglipay explained at deposition that, in assessing Pollard's performance, she took into consideration: (a) several complaints she had received regarding Pollard's attitudes toward nurses and doctors (i.e., Quest's customers); and (b) Pollard's failure to meet the time pressures associated with her job. Id. ¶ 55. Specifically, Aglipay testified that "some of our customers [sic] some complain about [Pollard]," clarifying that, by the term "customers," Aglipay meant "[n]urses, doctors." Def.'s Mot., Ex. 13 (Aglipay Dep.) at 33:17-22. She continued: "Yes. They complain to me about her being, you know, not giving some information about results or what -- for example . . . If the doctor ask for a result or nurse, don't just say, oh it's in the computer. Look in the computer. No you give the result to your client when they ask it. That's the complaint of the nurses and doctors about her." Id. at 34:1-9. In addition, Aglipay testified that, on more than one occasion, some of the Providence hospital staff also had complained to her about Pollard's attitude and "[t]he way she answered them back," complaining that Pollard's behavior was "not [sic] professional manner." Id. 37:5-38:7. Aglipay also explained that she had to speak to Pollard on at least five occasions during the 2005 evaluation period about Pollard's delay in completing laboratory work for emergency room patients. See id. at 34:20-36:13.

Although Pollard denies that Aglipay relied on such complaints in compiling Pollard's 2005 performance evaluation, Pollard has not directed the Court's attention to any affirmative evidence disputing Aglipay's testimony. See Pl.'s Resp. ¶ 55. Rather, Pollard relies solely on the fact that Quest did not produce any documentation of such complaints in response to Pollard's requests for documents. Id. As Quest explains, however, Aglipay testified in deposition that she would "just talk to [Pollard] not to [sic], you know, to be nice to the client," and could not recall whether any of the complaints issued were ever put in writing or if she herself ever issued Pollard a written letter of counseling. Def.'s Mot., Ex. 13 (Aglipay Dep.) at 39:8-40-13. Knapp, Quest's Director of Employee Services, testified at his deposition that it was not necessarily common practice or always appropriate for a supervisor to make written notations of performance concerns and/or complaints in preparing an employee's performance evaluation.

Def.'s Mot., Ex. 5 (Knapp Dep.) at 35:15-36:22.*fn12 Moreover, the Court emphasizes that, as noted above, Pollard does not deny that Aglipay gave her the overall "Achieves Expectation" rating "[b]ased on her overall performance." Pl.'s Resp. ¶ 53 (admitting Def.'s Stmt. ¶ 53).

Finally, Aglipay repeatedly testified at her deposition that she was not aware of Pollard's complaints of discrimination at the time she prepared Pollard's 2005 performance evaluation. See Def.'s Reply, Ex. 4 (Aglipay Dep.) 55:16-56:16; 59:3-8. Specifically, at her deposition, Aglipay testified as follows:

Q: . . . The performance appraisal that was conducted by you on Ms. Pollard [sic] dated January 2006, right? At the time you had assessed her performance did anybody mention that Ms. Pollard was ...


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