United States District Court, S.D. New York
June 16, 2004.
DIANA B. KLIER, Plaintiff,
JOHN SNOW, Secretary of the Department of the Treasury, THE DEPARTMENT OF THE TREASURY, and THE INTERNAL REVENUE SERVICE, Defendants.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
Defendants move for partial summary judgment on plaintiff's
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.
("Title VII") and Age Discrimination in Employment Act,
29 U.S.C. § 623 et seq. ("ADEA") claims.*fn1 For the reasons set
forth below, the defendants' motion for partial summary judgment
Plaintiff Diana B. Klier, a white female born on June 1, 1941,
has been employed by the Internal Revenue Service ("IRS") from
April 1979 to the present time. From 1994 to January 12, 2004,
Klier was a Manager in the Miscellaneous Case Processing Unit
("MCPU") in one of the IRS' Manhattan offices. This position was
originally graded as a General-Schedule ("GS")-9*fn2
position. Klier was given additional responsibilities in 1997. As
a consequence, she and her then-supervisor, Stephen Levy,
recommended that the National Classification Center reclassify
Klier's position as a GS-11 through a "Desk Audit."*fn3
Effective March 15, 1998, Klier's position with the MPCU was upgraded to GS-10 based on the results of this Desk
Audit. Klier's new title was Manager, Collection Support.
Klier learned in January 2002 that Stephen Baxam, a black male
approximately 55 years of age, had applied for and received a
GS-11. As a consequence, Klier concluded that she had been
discriminated against. According to Klier, her position involved
greater responsibilities than Baxam's but she was found to merit
only a one grade increased to GS 10. Baxam's position was
competitively announced on the IRS internet system, although
Klier did not apply*fn4 because the position was at a
Brooklyn location and would have increased her commute from
approximately thirty minutes to approximately one and half hours.
Klier initially complained about the alleged discrepancy between
the GS-level of the positions she and Baxam held to her
then-supervisor, Wayne Garvin, and requested that another Desk
Audit be performed. According to Klier, Garvin explained that a
Desk Audit could not be performed at that time because of an IRS
nationwide restructuring project then in progress. Garvin
suggested to Klier that a Desk Audit might eventuate if she filed
an Equal Employment Opportunity ("EEO") complaint. Klier
contacted an EEO counselor on February 14, 2002 and complained
that managers in other areas were being paid at a higher GS level
for the same or less work. On April 19, 2002, Klier filed a
formal EEO complaint and alleged race, color, and age
discrimination. She subsequently withdrew her color
discrimination claim on July 18, 2002. Klier subsequently
withdrew from the administrative process and on June 23, 2003,
she initiated this lawsuit.
On September 3, 2003, Mala Williams, a Human Resources
Specialist at the National Classification Center in Atlanta,
Georgia, completed a second Desk Audit of Klier's position.
Williams determined that Klier's position was properly graded at
GS-10 based on organizational charts, documents, and the
questionnaire signed by both Klier and Garvin. Klier avers that
she was not aware that this Desk Audit was conducted and did not
see the entire report, even though she signed the last page. Not
surprisingly, Klier claims that there were inaccuracies in the
Desk Audit report and that it did not adequately account for her
experience and responsibilities. Shortly thereafter, on October 8, 2003, Williams completed a Desk Audit
of Baxam's position.*fn5 Williams determined that Baxam's
position was properly graded at GS-11.
On December 14, 2003, Klier was awarded a GS-11 and the title
of Integrated Collection Support Quality Analyst following her
application for this competitively announced position.
Title VII makes it unlawful for an employer to, inter alia,
"discriminate against any individual with respect to his[/her]
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1). The ADEA makes it
unlawful for an employer to, inter alia, "discriminate
against any individual with respect to his[/her] compensation,
terms, conditions, or privileges of employment, because of such
individual's age." 28 U.S.C. § 623(a)(1). Here, Klier alleges
that she was discriminated against on the basis of her
sex,*fn6 race, and age by the defendants' course of conduct,
which resulted in her being placed in a lower grade level and
paid less than others not in her protected class. For the reasons
set forth below, the defendants' motion for partial summary
judgment on these claims is granted. Klier has failed to make out
a prima facie case of discrimination under either statute,
and had she done so, her complaint would nonetheless have likely
been dismissed for her failure to rebut the defendants' proffered
non-discriminatory rationale for compensating Klier at the GS-10
level during the time in question.*fn7
A. Standard of Review
Pursuant to Federal Rule of Civil Procedure ("Fed.R. Civ. P.")
56(c), a district court must grant summary judgment if the
evidence demonstrates 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." Anderson v. Liberty Lobby, Inc.,
477 U.S.C. § 242, 250 (1986). "Summary judgment is properly regarded
not as a disfavored procedural shortcut, but rather as an
integral part of the Federal Rules as a whole, which are designed
to `secure the just, speedy and inexpensive determination of
every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986) (quoting Fed.R.Civ.P. 1). To determine whether there is a genuine issue of material fact,
the Court must resolve all ambiguities and draw all inferences
against the moving party. United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd.
of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). However, the
mere existence of disputed factual issues is insufficient to
defeat a motion for summary judgment. Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11-12 (2d Cir. 1986). The disputed issues of
fact must be "material to the outcome of the litigation," id.
at 11, and must be backed by evidence that would allow "a
rational trier of fact to find for the non-moving party,"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The non-movant "must do more than simply show
that there is some metaphysical doubt as to the material facts."
Id. With respect to materiality, "substantive law will identify
which facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted."
Anderson, 477 U.S. at 248.
As in other areas of litigation, summary judgment is available
in discrimination suits. Weinstock v. Columbia Univ.,
224 F.3d 33, 41 (2d Cir. 2000). The Second Circuit has, however, urged
courts to exercise caution at the summary judgment stage where
intent is an issue, such as in discrimination cases. Gallo v.
Prudential Residential Svcs., Ltd., 22 F.3d 1219, 1224 (2d Cir.
1994). Nevertheless, summary judgment is appropriate "when an
employer provides convincing evidence to explain its conduct and
the plaintiff's argument consists of purely conclusory
allegations of discrimination," thereby eliminating any material
issue of fact. Diaz v. Weill Med. Ctr. of Cornell Univ., No. 02
Civ. 7380, 2004 WL 285947, at *14 (S.D.N.Y. Feb. 13, 2004).
To determine whether plaintiff's Title VII and ADEA claims will
survive summary judgment, the Court applies the same
burden-shifting scheme set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-4 (1973). See Terry v. Ashcroft,
336 F.3d 128, 138 (2d Cir. 2003). Under this scheme, plaintiff
must first make out a prima facie case of discrimination.
Id. at 137. If plaintiff makes such a showing, the burden of
going forward shifts to the defendants to offer a
non-discriminatory rationale for its actions. Id. at 138. If
such a showing is made, plaintiff must adduce sufficient evidence
to establish that the defendants' proffered rationale was
pretextual and defendants were more likely than not motivated by
a discriminatory animus. Id.
B. Klier's Title VII and ADEA Claims
Klier alleges that the defendants discriminated against her on
the basis of her sex, race, and age through their "course of
conduct . . . which collectively resulted in [p]laintiff being
paid less and being placed in a lower grade level than others not in her
protected class." Complaint ¶¶ 30, 44, 58. In essence, Klier
contends that the defendants discriminated against her through
their refusal to reclassify the position she held from March 15,
1998 to December 14, 2003*fn8 from GS-10 to GS-11, which
resulted in lower pay and denial of promotional
opportunities.*fn9 To support her claim, Klier avers that
"Steven Baxam, a black male who is younger than Plaintiff, . . .
holds the same title as Plaintiff and has less experience and
seniority . . ., is responsible for less employees . . ., and is
responsible for less work than Plaintiff . . ., yet is paid more
than Plaintiff, and has a higher grade level than Plaintiff, to
wit[,] GS Level 11." Id. ¶ 22. Based upon this, Klier seeks
actual damages for past and future earnings, bonuses, grade level
increases, pension contributions, and other employment benefits,
as well as punitive damages where permitted by statute, a
permanent injunction barring defendants from violating Title VII
and ADÉA, pre- and post-judgment interests, and attorneys' fees
These allegations, however, are insufficient to make out a
prima facie as required at the first stage of the McDonnell
Douglas framework because they do not give rise to an inference
of discrimination. A prima facie case under either Title VII
or ADEA requires that Klier: (1) belong to the protected class;
(2) was qualified for the employment position; (3) suffered an
adverse employment action; and (4) the circumstances surrounding
the adverse employment action give rise to an inference of
discrimination. Terry, 336 F.3d at 137-38. To the extent that
Klier raises a Title VII unequal pay claim, she must also prove
discriminatory intent on the part of defendants. E.g., Belfi v.
Prendergast, 191 F.3d 129, 139 (2d Cir. 1999) (holding that
unequal pay claims under Title VII require proof of
discriminatory animus). Thus, regardless of whether Klier's Title
VII and ADEA allegations are premised on adverse employment
action or unequal pay, they both require some preliminary offer
of proof that defendants' acts were motivated by a discriminatory
intent. Baptiste v. New York City Transit Auth., No. 02 Civ.
6377, 2004 WL 626198, at *4 (S.D.N.Y. March 29, 2004); Como v.
O'Neill, No. 02 Civ. 985, 2002 WL 31729509, at *3 (S.D.N.Y. Dec.
4, 2002). Klier has not sustained her "minimal" burden, see
Mandell v. County of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003),
in this regard because she relies solely on conclusory
allegations and unsupported inferences of discrimination, e.g.,
Erhunmwunse v. Edison Parking Corp., 301 F. Supp.2d 278, 282
(S.D.N.Y. 2004) ("Although [plaintiff] makes conclusory
allegations which would support such an inference [of discrimination], he has
failed to provide sufficient facts, supported by evidence in
that regard.") (emphasis in original). Without regard to the
remaining elements, Klier has therefore failed to make out a
prima facie case.
The thrust of Klier's allegations is that her position during
the relevant timeframe should have been reclassified as GS-11
because she was more experienced and handled more complex
assignments than other IRS employees whose positions were
classified at the higher GS level. In the narrative section of
her EEO complaint, Klier detailed her frustration with being
underpaid for performing what she described as greater
responsibilities than those carried out by other managers.
Declaration of Sarah E. Light ("Light Decl."), Ex. G at 3.
Indeed, the "EEO Counseling Report Individual Complaint" form
prepared by the EEO counselor in conjunction with Klier's EEO
complaint distilled Klier's complaint in a single sentence:
"Mgrs. in other territories/areas doing same work or less and are
hired at higher grades (GS 11)." Light Decl., Ex. F at 1. Klier's
subjective belief that her position ought to have been
reclassified at a higher grade is insufficient to support a Title
VII or ADEA claim of discrimination. E.g., Aldrich v. Randolph
Cent. School Dist., 963 F.2d 520, 528 (2d Cir. 1992) (affirming
summary judgment for defendants on plaintiff's Title VII claim of
sex-based wage discrimination because, inter alia, plaintiff
failed to produce evidence that the civil service commission had
a discriminatory intent in its refusal to reclassify plaintiff's
position); Ascione v. Pfizer, Inc., ___ F. Supp.2d ___, 03
Civ. 244, 2004 WL 741673, at *5 (S.D.N.Y. April 2, 2004)
(rejecting plaintiff's claim that she was unlawfully denied a
promotion because it was supported only by her subjective
testimony that she was more qualified than a co-worker for a
As these cases indicate, Klier must proffer evidence of
discriminatory intent, which she may do either through direct or
circumstantial evidence. E.g., Taggert v. Time, 924 F.2d 43,
46 (2d Cir. 1991). When a plaintiff relies on circumstantial
evidence, as is often the case in employment discrimination
suits, Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991)
("[a]n employer who discriminates is unlikely to leave a `smoking
gun'"), the Second Circuit has cautioned courts to "carefully
distinguish between evidence that allows for a reasonable
inference of discrimination and evidence that gives rise to mere
speculation and conjecture," Bickerstaff, 196 F.3d at 448. "An
inference is not a suspicion or a guess. It is a reasoned,
logical decision to conclude that a disputed fact exists on the
basis of another fact." Id. (internal quotation marks omitted).
Here, it would be pure speculation to conclude that defendants'
actions were motivated by discrimination. Klier's EEO complaint
is devoid of any description of a discriminatory motive for defendants' conduct. In fact, the only mention of a possible
basis for discrimination (other than the boxes on the EEO
complaint checked in Section 16 which indicated the type of
discrimination upon which the complaint was based) is Klier's
observation in the narrative section that Baxam and his
predecessor a female were black. Light Decl., Ex. G at 2, 3.
Klier's pleadings and opposition to defendants' motion for
partial summary judgment offer little more. These submissions
provide only a slightly more detailed explanation of defendants'
refusal to reclassify her position and comparison of Klier's and
Baxam's positions, qualifications, responsibilities, and GS
grades. These details fail to reveal a discriminatory basis for
defendants' refusal to conduct a Desk Audit of Klier's position,
a necessary preliminary step to any grade reclassification.
Klier's comparison to one other employee who happens to be of a
different gender and race and who is only seven years younger
than Klier and whose predecessor was female does not offer any
more substance or grounding to Klier's conclusory allegations of
discrimination. E.g., Tomka v. Seiler Corp., 66 F.3d 1295,
1313 (2d Cir. 1995), abrogated on other grounds by Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), (finding that the
facts offered by plaintiff that male employees were paid more
were insufficient to support an inference that the defendant
acted with a discriminatory intent). Klier has offered no
evidence to support an inference of discriminatory animus and
therefore she has failed to state a prima facie case under
either Title VII or ADEA.
Even if Klier's allegations could be construed to support an
inference of discrimination and thus establish a prima facie
case, she has nevertheless failed to rebut defendants' proffered
non-discriminatory rationale for their refusal to reclassify
Klier's position at a higher GS level. To the extent that Klier
argues that defendants improperly refused to conduct another Desk
Audit in response to her 2002 complaint to Garvin, Klier admits
that the IRS had a general ban on Desk Audits until the
completion of the nationwide restructuring project. Defendants
presented evidence that Klier's position was graded at GS-10
based on two separate Desk Audits conducted in 1998 and 2003.
Klier contests the accuracy of the Desk Audits, but she has not
demonstrated that the defendants' failure to upgrade her position
was more likely than not motivated by discrimination. Terry,
336 F.3d at 138. Klier's argument on this score is substantially
under cut by the fact that she chose not to apply for Baxam's
position and that when she did apply for a competitively
announced GS-11 position, she was promoted to the GS-11 post that
she has held since December 14, 2003. In short, Klier adduced no
evidence from which a reasonable jury could conclude that the
defendants' rationale is pretextual, and thus, she has failed to
carry her burden in the third stage of the McDonnell Douglas
analysis and her Title VII and ADEA claims fail. III. CONCLUSION
For the foregoing reasons, defendants' motion for partial
summary judgment is granted. The Clerk of the Court is instructed
to close this motion and all other open motions. Trial on
plaintiff's sole remaining claim pursuant to the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., as amended by the
Equal Pay Act, 29 U.S.C. § 206(d), will begin as scheduled on
June 28, 2004.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.