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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


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 is granted.


  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 and disbursements.

  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 position).

  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.


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