United States District Court, E.D. Virginia, Alexandria Division
December 12, 2016
ANDREA KELLY Plaintiff,
THE BOEING COMPANY Defendant.
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
discrimination, the adverse employment action would not have
occurred. See Gross v. FBL Fin. Servs. Ins., 557
U.S. 167, 176 (2009).
sex and race discrimination claims, Plaintiff cannot meet the
third element of a prima facie case in regard to her
allegations that she was excluded from meetings and not
allowed to perform job duties, because these are not
actionable adverse actions. An adverse employment action is
one that adversely affects the terms, conditions, or benefits
of the plaintiff's employment, such that the employee
suffers some significant detrimental effect from the action
in question. Holland, 487 F.3d at 219.
alleges that she was excluded from meetings that allegedly
concerned her job duties, and that she was not allowed to
perform her space-planning duties and instead was given tasks
unrelated to her position. These incidents do not constitute
adverse employment actions, because Plaintiff did not suffer
a demotion, pay decrease, or performance-based discipline.
See James v. Booz-Allen & Hamilton, Inc., 368
F.3d 371, 377 (4th Cir. 2004) (ruling that Plaintiff's
claim that he was excluded from "important
meetings" was not an actionable adverse action). In the
absence of any tangible effect on Plaintiff, her
dissatisfaction with her job duties and her alleged exclusion
from meetings does not rise to the level of an adverse
action. As a result, Plaintiff's claims predicated on
allegations that she was prevented from performing her job
and excluded from meetings should be dismissed.
Plaintiff cannot meet the fourth element of a prima facie
case because she fails to present valid comparator evidence
showing similarly situated employees were treated more
favorably. First, Plaintiff testified that white women were
mistreated in the same fashion she was by the same
supervisors. Plaintiff's admission that white employees
were treated similarly negates her claim that she was
mistreated because she was black. Second, the evidence shows
that male employees were not treated differently than
Plaintiff. Three of the supervisors Plaintiff claims
discriminated against her-John Niles, Keith Ensley, and Greg
Perkinson-issued progressive discipline to male employees for
engaging in unprofessional conduct similar to the conduct for
which Plaintiff was disciplined. In fact, Alan Hines,
Plaintiff's white male coworker involved in the May 28,
2015 meeting, was disciplined for his behavior during the
same series of incidents that led to Plaintiff's
termination. Last, Boeing hired a female employee for
Plaintiff's position following Plaintiff's
termination. This fact undercuts Plaintiff s theory that she
was terminated on the basis of her sex. See Garrow v.
Economos Props., Inc., 406 F.Supp.2d 635, 640 (E.D. Va.
2005), aff'd, 242 F.App'x 68 (4th Cir. 2007)
("It is not discrimination to replace a member of a
protected class with another member of the same protected
regards to age discrimination, Plaintiff has not proven that
her termination would not have occurred but for her age.
See Gross, 557 U.S. at 176. Rather, Defendant
terminated Plaintiff because she had already received two
Corrective Action Memos under Boeing's progressive
disciplinary process. As a result, Plaintiff's age
discrimination claim also fails.
even if Plaintiff were able to make a prima facie case of
discrimination, Defendant's legitimate, nondiscriminatory
reasons for Plaintiff's termination satisfy the burden of
production in the McDonnell Douglas framework and
shift the burden back to Plaintiff to prove that Boeing's
proffered reason was not the true reason for her termination
but a mere pretext for discrimination. Defendant has
articulated a legitimate reason for Plaintiff's
termination: Plaintiff's supervisors observed that she
repeatedly engaged in inappropriate and unprofessional
conduct. An employee's unprofessional and disruptive
behavior is a legitimate, nondiscriminatory reason for
discipline and termination, as is terminating an employee
under a progressive disciplinary policy.
Plaintiff engaged in multiple acts of unprofessional
behavior. She was disciplined for such behavior under
Boeing's progressive disciplinary policy. Under that
policy, Plaintiff received three corrective actions, each of
which was preceded by a Human Resources investigation. Boeing
reasonably relied on the results of those investigations in
disciplining Plaintiff, including terminating her after her
third instance of unprofessional behavior. Thus, Boeing's
actions were not a pretext for discrimination, even if
Plaintiff disagreed with the results of the investigation and
with her termination. Furthermore, as evidenced by its
corrective action with Alan Hines, Boeing applied its
progressive discipline process to white and/or male employees
when they engaged in similar unprofessional conduct, further
underscoring the non-pretextual nature of Plaintiff's
discipline and termination. Plaintiff has not shown how
Defendant's conduct amounted to discrimination beyond her
own inference that because her supervisors were white men,
they must have discriminated against her because she is a
black women, and she has not shown that the legitimate,
nondiscriminatory reason for her termination was a mere
pretext for discrimination. Thus, Plaintiff's sex, race,
and age discrimination claims fail, and Defendant is entitled
to summary judgment on Count I, Count II, and Count III.
Count IV of her Complaint, Plaintiff alleges that she was
terminated in retaliation for reporting that she was bullied
by white men. To establish a prima facie case of retaliation,
Plaintiff must prove that: (1) she engaged in protected
activity; (2) she suffered an adverse action; and (3) her
protected activity was the but-for cause of the adverse
action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2528 (2013); EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 405-06 (4th Cir. 2005).
fails to make a prima facie case of retaliation because, even
if her complaint that she was being mistreated by white men
constituted protected activity, she cannot prove that this
activity was the but-for cause of her termination, and she
cannot rebut Boeing's legitimate reasons for her
termination. As explained above, Boeing progressively
disciplined Plaintiff for three separate incidents where
managers believed she engaged in inappropriate and
unprofessional conduct. Each corrective action was issued
after Human Resources conducted an investigation that
determined Plaintiff had violated Boeing's expected
behaviors. Under the progressive policy, Boeing applied
increasingly severe discipline for each incident, culminating
in Plaintiff's termination. Boeing's application of
progressive discipline for unprofessional behavior was a
legitimate, non-retaliatory reason for Plaintiff's
termination. Thus, Plaintiff's retaliation claim fails,
and Defendant is entitled to summary judgment on Count IV.
aforementioned reasons, this Court finds that summary
judgment should be granted in favor of the Defendant on
Counts I, II, III, and IV. An appropriate order shall issue.