United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant The Boeing
Company's ("Defendant" or "Boeing")
Motion for Summary Judgment. Plaintiff Andrea Kelly
("Plaintiff"), a sixty-five year old
African-American female, worked at Boeing as a facilities
planner on a government contract between October 2009 and May
2015. Plaintiff alleges that she was subjected to
discrimination and retaliation on the basis of her sex, race,
and age in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.; Section 1981
of the Civil Rights Act of 1866, 42 U.S.C. § 1981, et.
seq.; and the Age Discrimination in Employment Act
of 1967, 29 U.S.C. § 621 et. seq.
began working for Boeing in October 2009, when Boeing became
the primary contractor for a classified government contract.
Plaintiff worked as a facilities planner, providing support
to ensure that Boeing and the government customer were
effectively using space at their classified government
facility. During her time at Boeing, Plaintiff reported to
five first- and second-level supervisors, all of whom were
white males: Bernie Carey, John Niles, Keith Ensley, Andrew
Miller, and Greg Perkinson. Plaintiff alleges that these
supervisors disregarded her skills and experience by
excluding her from meetings, assigning her low-level tasks
inconsistent with her position, and making space-planning
decisions without her.
points to a several occasions where she felt disregarded and
excluded to support her claims of discrimination and
retaliation. For instance, Plaintiff claims that Bernie Carey
routinely sent a younger white female and low-level hourly
employee to team-building activities and planning meetings
instead of sending Plaintiff. Plaintiff also claims that
Boeing brought in a white male independent contractor to
perform space-planning duties that should have been performed
by Plaintiff, and that her supervisors assigned her tasks
unrelated to her position and constantly picked fights with
her. Additionally, Plaintiff alleges that a Boeing manager
bypassed Plaintiff during the approval process of office
renovations, which prevented Plaintiff from keeping the
government customer informed on space planning matters.
had several confrontations with her supervisors where she
addressed feeling excluded from space planning decisions-some
of which resulted in loud outbursts and yelling. One of these
incidents occurred during an October 23, 2013 meeting between
Plaintiff, John Niles, and Greg Perkinson. During that
meeting, Plaintiff raised her voice at her supervisors.
Feeling that Plaintiff had acted unprofessionally and
inappropriately, Mr. Niles and Mr. Perkinson reported
Plaintiff's behavior to Boeing Human Resources. In
response to the reports, Human Resources investigated the
incident and issued Plaintiff a written warning in the form
of a Corrective Action Memo. The memo found that Plaintiff
had violated one of Boeing's expected behaviors:
"Treat others and expect to be treated with respect,
dignity, and trust."
expected behaviors are contained in Boeing's Employee
Corrective Action Process Requirements, a written progressive
discipline procedure that sets out general principles for
administering corrective action. The procedure includes
various categories of violations of expected behavior, one of
which is "Unacceptable/Disruptive Behavior or
Communication." Under the progressive discipline
procedure that Boeing uses to discipline employees, the level
of discipline imposed on employees who commit repeated
violations of the same or similar policies increases in
severity with each violation.
received a second Corrective Action Memo on July 3, 2014,
which resulted from a confrontation between Plaintiff and a
Boeing manager, Jonathan Mollerup. Upon investigating the
incident, Human Resources determined that Plaintiff had used
profanity and name-calling and had behaved unprofessionally.
Because Plaintiff had previously received a written warning
for the same type of behavior, Boeing issued Plaintiff a
one-day suspension in accordance with its progressive
discipline policy. When Human Resources issued
Plaintiff's second corrective action, Plaintiff yelled at
her supervisor and stated that the Boeing site was run by
white men. Based on this conduct, Human Resources recommended
that Boeing issue Plaintiff further discipline, but her
supervisors declined to do so.
received a third Corrective Action Memo on May 28, 2015,
after Human Resources determined that she had engaged in
inappropriate and disruptive behavior during a meeting with a
coworker, Alan Hines, and her supervisor, Keith Ensley.
During the meeting, Mr. Ensley observed that Plaintiff raised
her voice and was hostile toward her coworker, and that she
refused to acknowledge any wrongdoing. During the meeting,
Plaintiff told Mr. Hines and Mr. Ensley that she was tired of
being beat up on by white men. Mr. Ensley contacted Human
Resources and requested corrective actions for both Plaintiff
and Mr. Hines. Like the two prior Corrective Action Memos,
Plaintiff's May 28, 2015 Corrective Action Memo was given
for violating the expected behavior of "Treat others and
expect to be treated with respect, dignity, and trust."
the third Corrective Action Memo, which cited Plaintiff's
"continued display of inappropriate and disruptive
behavior, " Boeing terminated Plaintiff's
employment, effective May 29, 2015. Plaintiff alleges that
she was terminated in retaliation because she complained
about being bullied, and because her white male managers
resented her as an African-American woman who confronted her
supervisors. Following Plaintiff's termination, Boeing
hired Katherine Ressman, a 38-year old white female, to be
the new facilities planner.
received a Notice of Right to Sue from the Equal Employment
Opportunity Commission on February 9, 2016. Plaintiff filed
this action on February 25, 2016, alleging sex discrimination
(Count I), race discrimination (Count II), age discrimination
(Count III), and retaliation (Count IV). Following discovery,
Defendant now moves for summary judgment on all counts.
Federal Rule of Civil Procedure 56, summary judgment is
appropriate if the pleadings and evidence before the Court
show no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In reviewing a motion for summary
judgment, the Court views the facts in the light most
favorable to the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a
motion for summary judgment is properly made, the opposing
party has the burden of showing that a genuine dispute of
material fact exists. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
plaintiff alleging sex, race, and age discrimination or
retaliation may prove her case by using either (1) direct or
circumstantial evidence of discrimination; or (2) the
burden-shifting approach under the McDonnell Douglas
"pretext" framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973); Holland
v. Wash. Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007).
Plaintiff proceeds under the McDonnell Douglas
approach. Under McDonnell Douglas, a plaintiff must
first state a prima facie case of discrimination. See
Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006). If
the plaintiff succeeds in stating a prima facie case, the
burden of production shifts to the defendant to articulate a
legitimate, non-discriminatory reason for its adverse
employment decision. Id. If the defendant satisfies
this showing, the plaintiff must show that the articulated
reason is a pretext for discrimination. Id. at
fails to establish a prima facie claim of discrimination. To
establish a prima facie claim of sex and race discrimination,
a plaintiff must show that: (1) she is a member of a
protected class; (2) she has satisfactory job performance;
(3) she was subjected to an adverse employment action; and
(4) that similarly situated employees outside her class
received more favorable treatment, or, if the plaintiff was
terminated, that the position was filled by similarly
qualified individuals outside her protected class. Gerner
v. Cty. of Chesterfield, 674 F.3d 264, 266 (4th Cir.
2012); Holland, 487 F.3d at 214.
establish an age discrimination claim, Plaintiff must show
that: (1) she was older than 40; (2) she was discharged; (3)
she was qualified for the job and met the defendant's
legitimate expectations; and (4) her position remained open
or was filled by a similarly qualified individual who was
substantially younger. See Warch v. Ohio Cas. Ins.
Co., 435 F.3d 510, 513 (4th Cir. 2006). A plaintiff
suing under the ADEA must show that "but for" age