Coward v. ADT Security Systems, Inc.

STEPHEN F. WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

The majority affirms the district court’s grant of summary judgment for the period of time after April 19, 1995,1 but remands the case on the theory that certain uniden*161tified wage and grade disparities existed between plaintiff Edward Coward and other Telecommunications Network Facilities Managers (“TNFMs”) between March 1994 and April 19, 1995, disparities that it believes ADT failed to justify. I think the remand is unwairanted. Coward has not established a prima facie case for the earlier period; ADT’s nondiscriminatory explanation for Coward’s pay and grade for the period after April 19, 1995 is, moreover, equally applicable to the prior period and stands equally unrebutted. I believe the district court properly ordered summary judgment in ADT’s favor on Coward’s entire claim, and therefore respectfully dissent.

Under the familiar burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Coward has the burden of demonstrating by a preponderance of the evidence that he was performing work substantially equal to that of a white employee who was compensated at a higher rate than he was. Coward v. ADT Security Sys., Inc., 140 F.3d 271, 273 (D.C.Cir.1998) (“Coward I”). In the first appeal in this case, we determined that Coward had established a prima facie case of wage discrimination. See id. at 275-76. Coward I did not, however, specify the time period covered by the prima facie case. Yet the majority now assumes that Coioard I must have found a prima facie case for the entire period addressed in Coward’s complaint. “Coward has established a prima facie case — that is no longer in issue. ADT was required to respond.” Maj. Op. at 159. Under this logic, the recognition by a panel of this court that a prima facie case existed for any period of time compels the conclusion (under law-of-the-case principles) that the prima facie case extends to the entire period covered by plaintiffs allegations. But allegations are notoriously not evidence. The only evidence in the record concerns wage and grade disparities after April 19, 1995. Thus the panel leaves unanswered the question of what it is to which ADT must respond.

The purpose of the McDonnell Douglas framework is to “sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In the panel’s hands it seems to have quite the opposite effect: by assuming the existence of a prima facie case for a period where the evidence shows none, it blunts rather than sharpens the inquiry, requiring the defendant to explain what has not been shown even to exist.

Indeed, the panel appears to reason that once allegations are filed, a prima facie case exists unless the defendant comes forward with proof of its absence. Thus it faults ADT for not reaching back into its records unbidden to establish a prima facie case for Coward, saying that although ah ADT manager said there were salary records for the period before April 19, 1995, “none were offered.” Maj. Op. at 159. Use of the passive voice is telling: Yes, no one bothered to show a wage disparity for that period — neither Coward, who had the burden, nor ADT, which didn’t. I do not understand why ADT should be penalized for Coward’s omission. The majority persists in shifting the initial burden onto ADT: “And ADT did not assert before either the trial court or this court that Mr. Coward was fabricating or otherwise wrong in his claim that his salary was below what was being paid to other TNFMs during the period ... when he was promoted to that position.” Maj. Op. at 159 (emphasis added). Again, as Coward’s “claims” are not evidence, ADT had no need to rebut them.

The majority invokes the principle of continuity, saying that as Coward was paid less than certain comparison employees in the post-reclassification period it stands to reason that he was paid less in the period immediately preceding classification. Maj. Op. at 158. The principle of continuity is *162generally a sound one: the basic reason why we believe the sun will rise tomorrow is the persistence of the pattern — of its rising, day after day, and, in our modern sophisticated times, the persistence of all the complex associated astronomic phenomena. In this case, however, use of the principle is questionable. First, the majority’s whole claim that ADT’s stated explanation does not cover the earlier period turns on the notion — false, as it turns out — that Coward suffered some painful downgrade on April 19, 1995. If he had, the inference of continuity would be self-evidently inapplicable as a matter of fact. Second, there were hard data in the record in the post-April 19, 1995 period; Coward offered none for the period before, although, as the majority rightly notes, the data were available to him. So the parties unsurprisingly focused most clearly on the later time. Thus use of the principle of continuity to create a prima facie case is procedurally askew. In short, Coward’s failure to offer evidence for a prima facie case should end the matter.

Nonetheless, it turns out that even if we assume a prima facie case for the earlier period, ADT’s evidence rebuts any inference of discrimination. The majority theorizes that the record is in conflict over ADT’s justification of supposed disparities. Its analysis turns essentially on two propositions that in reality are contradicted by the evidence. First, it asserts that there may have been some material reduction in Coward’s duties in the Spring of 1995. If true, then of course ADT’s evidence— showing that his post-April 19, 1995 responsibilities were less than those of the employees with whom Coward compared himself — would not work for the prior period. But in fact the record is plain that there was no such reduction in duties. To summarize the basic evidence: (1) Soon after Coward was moved to the Sales and Service Office (“SSO”) in Springfield, VA, in February 1994, he received the title TNFM. (2) In the Spring of 1995 ADT concluded that Coward, who was the only employee designated a TNFM who worked outside of a Customer Monitoring Center (“CMC”), a class of facility different from the SSO at Springfield, was doing less demanding work than the TNFMs at CMCs. (3) ADT therefore reclassified Coward out of TNFM status and into “Technical Support-SSO.” (4) Accordingly, when ADT’s evidence showed that for the period after April 19, 1995 Coward’s work demanded less than that of the then remaining TNFMs (his supposed comparison employees), it simultaneously showed that his prior work demanded less than that of the other TNFMs — the same group of comparison employees. In short: post-April 19, 1995 — Coward’s work was less than TNFMs; pre-April 19, 1995 — his work was less than that of “other” TNFMs, a group to which he was added only because of confusion over his job title.

Second, the majority suggests that the record is in conflict over whether Coward ever received an elevation from pay grade E-8 to pay grade E-9. It is obscure why the majority regards this as material: the record is crystal clear that the two pay grades overlapped almost completely. The difference in the mid-point of the grades as of January 1, 1995 was very small — less than $3500 ($35,644 v. $38,971); but the spread of each grade was huge: E-8 sprawled from $28,826 to $42,241, and E-9 from $31,265 to $46,288. See Joint Appendix (“J.A.”) 1776.2 In any event, as we shall see, Coward did get moved to E-9 and then back to E-8; his actual salary kept increasing throughout the entire period and was at all times within the range for both grades.

Sprinkled over the majority’s torture of the record is the further suggestion that ADT failed even to claim that its post-April 19, 1995 defense embraced the earlier period. This is not true. Accordingly, in addressing the evidence I will also note *163the correspondence between the evidence and ADT’s reasoning.

Coward's duties. Coward and ADT agree that Coward received the title TNFM in March 1994. Despite the “promotion,” Coward testified that his duties remained basically the same when he acquired and then lost the title TNFM and the pay grade E-9. He said, “[The TNFM title] was not a promotion. It was just something that was set up to match the jobs that I was doing.... It was actually what I had been doing for the past 10 or 12 years.” Deposition of Edward Coward (“Coward Dep”) at 57, J.A. 1851, 1861. He continued, “I assume [the title Technical Support-SSO is] just another ADT term because I’m basically doing the same job.” Id. His opening brief here agreed: “To date, there has been little, if any, change in Coward’s responsibilities as a TNFM.” Appellant’s Initial Br. at 3.

In the Spring of 1995, the Mid-Atlantic Division president reviewed the duties of all Capital Region employees. During this review, ADT found that the only nominal TNFM at an SSO (i.e., Coward) h'ad narrower duties and responsibilities than other TNFMs. See Swinarski Decl. at 7 ¶ 21, J.A. 1773 (stating that Coward’s pay grade was changed for reasons of internal equity after ADT determined that his duties were “significantly narrower than those of the [TNFMs] assigned to CMC’s.”). Because ADT compared Coward to all of the other TNFMs in the region at a time when Coward’s duties were as broad as they had ever been, its reasons for paying him less than TNFMs at CMCs apply to the entire period at issue in this case.

ADT’s summary judgment motion invokes this evidence. See ADT’s Supplemental Memorandum in Support of Summary Judgment at 9-10, J.A. at 2182-83. Although ADT referred to the division president’s review both in its discussion of the decision to lower Coward’s pay grade and the subsequent decision to change his title, the point of the pay grade analysis in ADT’s motion for summary judgment is that effective April 19, 1995, Coward’s pay grade was adjusted to match the scope of his duties before and after that date. See id. His title, however, was not changed until ADT decided that it would not assign additional duties to Coward to bring him in line with others who held the TNFM title. See Deposition of Edward B. Pictroski (“Pictroski Dep.”) at 64, 73-76, J.A. 1602, 1611-12 (noting that Coward did not receive the title Technical SupporNSSO until May 17, 1995, once ADT determined that it would continue to confine the broader telecommunication networking duties to workers at CMCs). ADT made the point explicitly in its motion for summary judgment. See ADT’s Supplemental Memorandum in Support of Summary Judgment at 10, J.A. 2183.

Coward’s poster child comparison worker — supposedly doing the same work but paid more — was John Wyatt, a TNFM in Baltimore. It is now undisputed that his network and management duties exceeded those of Coward; indeed, he decided which continuing education courses workers such as Coward would take. See Coward Dep. at 102-03, J.A. at 1868-69. But his duties had not suddenly eclipsed Coward’s after April 1995: he served as a facilities manager from the time he started with ADT in 1987 into the period of litigation itself. See Deposition of Michael Kennelly (“Ken-nelly Dep.”) at 43-44, J.A. 1644, 1686-87 (identifying Wyatt as having started his facilities management work as of 1987 and having broader duties than Coward because he was responsible for the facilities for a large portion of the Mid-Atlantic Division). In its brief on summary judgment ADT pointed to the Wyatt-Coward comparison, never suggesting any time limits on the contrast in duties.3 See ADT’s Supplemental Memorandum in Support of Summary Judgment at 10 & n.5, J.A. at 2183 & n.5 (noting that Wyatt had *164substantial network and management duties that exceeded those assigned to Coward).

The majority concludes its analysis of Coward’s duties by suggesting that no comparison can be drawn between Coward and the TNFMs because Coward’s responsibilities declined after he was reclassified. As we have seen, the evidence in fact shows that the reclassification occurred simply to bring Coward’s title into line with his real responsibilities. • There is no evidence supporting the idea that the reclassification brought on a reduction in duties. The majority cites the testimony of ADT’s director of benefits and compensation, Edward B. Pictroski. See Maj. Op. at 159-60. While Pictroski testified that Coward’s “duties” changed when his job changed from TNFM to Technical Support-SSO, see Pictroski Dep. at 75, J.A. at 1614, it is plain that this referred only to the uncontested fact (indeed, the tautology) that Coward’s general job description changed when he was classified as Technical Support-SSO. Pictroski explicitly acknowledged that he had no idea what Coward actually did on a day-to-day basis. See id. at 76, J.A. at 1614. Given that ADT offered him solely to describe corporate policy, see Appellee’s Br. at 10-11, the ignorance is hardly surprising.

The majority also cites Coward’s exclusion from supervisory meetings as evidence that his duties changed. Maj. Op. at 159-60. But Coward gave this testimony about exclusion from a supervisors’ meeting on October 1, 1996, at least 19 months after the supposed down-grading. ' Coward stated explicitly that the exclusion occurred “a few days earlier.” See Coward Dep. at 66, J.A. at 1862 (emphasis added); see also id. at 65-66, J.A. at 1862 (explaining that he had complained about the exclusion in “a conversation I had with my immediate boss last week concerning my status with the company” (emphasis added)). Obviously such attendance could not have been a critical difference between the TNFM and Technical Support-SSO jobs if it took until late September of 1996 for ADT to stop inviting Coward to the meetings, or at least for Coward to notice his exclusion. The change described by Coward (assuming it occurred) was plainly a change within the period for which we all agree summary judgment was proper, not a change between the two periods.

The elevation to salary grade E-9. There is no basis for the majority’s uncertainty as to whether Coward ever received the E-9 grade. See Maj. Op. at 159-60. Coward’s “Personnel Data Maintenance Form” shows the shift from E-9 to E-8 effective April 19, 1995, J.A. 1799. No change in actual pay occurred at the time; this is unsurprising as there was no change in duties and his pay at the time was comfortably within the ranges for both nominal pay grades. See J.A. 1776 (listing the salary ranges for each grade).

In short, even if we accept the majority’s application of the continuity principle (i.e., the supposition that Coward must have earned less than some TNFMs prior to his reclassification because he earned less than some TNFMs after reclassification), it turns out that ADT’s explanation of the superficial discrepancies of the post-April 19, 1995 era covers the entire period that Coward’s complaint — though not his evidence — purported to put in issue.

* * *

For the foregoing reasons, I concur in the court’s judgment affirming summary judgment for the period after April 19, 1995, but dissent from it insofar as it remands the case for further proceedings.

. I omit the initial two numbers from each citation to the Joint Appendix.

. Of course its reference to pay alluded to the only pay comparison data in the record, which did relate to the post-April 19, 1995 period.