Boaz v. Fed. Express Corp.. D/B/A Fedex Express

• Decision Date: 24 September 2010
• Docket Number: No. 2:09–cv–02232–dkv.,2:09–cv–02232–dkv.
• Citation: 742 F.Supp.2d 925
• Parties: Margaret BOAZ, Plaintiff,v.FEDERAL EXPRESS CORPORATION d/b/a Fedex Express and Fedex Customer Information Services, Inc., Defendants.
• Court: U.S. District Court — Western District of Tennessee

742 F.Supp.2d 925

Margaret BOAZ, Plaintiff,

v.FEDERAL EXPRESS CORPORATION d/b/a Fedex Express and Fedex Customer Information Services, Inc., Defendants.

No. 2:09–cv–02232–dkv.

United States District Court, W.D. Tennessee, Western Division.

Sept. 24, 2010.

Stephen H. Biller, The Biller Law Firm, Memphis, TN, for Plaintiff.Melissa Kimberly Hodges, FedEx Corporation, Memphis, TN for Defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

DIANE K. VESCOVO, United States Magistrate Judge.

In this employment discrimination lawsuit, filed originally on April 17, 2009, the plaintiff, Margaret Boaz, alleges that the defendants, Federal Express Corporation d/b/a FedEx Express and FedEx Customer Information Services, Inc. (“FCIS”) (collectively “FedEx”): (1) violated the Fair Labor Standard Act (“FLSA”) by discriminating against her because of her sex in violation the Equal Pay Act Amendment of the FLSA (“EPA”), failing to pay her overtime compensation, and failing to keep accurate records and working her outside of her job classification; (2) violated the Tennessee Human Rights Act (“THRA”) by discriminating against her because of her sex; (3) violated Title VII of the Civil Rights Act of 1964 (“Title VII”) by discriminating against her because of her sex; and (4) retaliated against her for complaining about gender discrimination in violation of Title VII. On May 8, 2010, FedEx filed a motion for summary judgment regarding all of Boaz's claims, and Boaz filed a motion for partial summary judgment regarding her claims for disparate pay in violation of the EPA, THRA, and Title VII. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge. Now before the court are these cross motions for summary judgment.

A hearing was held on September 1, 2010. After considering arguments of counsel, the briefs of the parties, and the record as a whole, the court denies Boaz's motion for partial summary judgment, and grants in part and denies in part FedEx's motion for summary judgment.

I. UNDISPUTED FACTS

Based on each party's statement of undisputed material fact submitted in support of the cross motions for partial and total summary judgment and the responses of the opposing party and for the purposes of these cross motions, the court finds that the following facts are undisputed:

1. On December 26, 1996, Boaz applied for employment with FedEx and was hired on February 17, 1997, in Customer Service on a part-time basis.

2. As part of her employment application, Boaz received and signed an Employment Agreement, indicating that she read, understood, and agreed to FedEx's terms and conditions of employment.

3. The Employment Agreement consists of fifteen paragraphs and includes a statute of limitations for filing suit against FedEx. Specifically, Paragraph 15 provides: “To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.”

4. The Employment Agreement also includes a dispute resolution procedure. Specifically, Paragraph 12 provides:

Dispute Resolution Procedure: I fully understand my employment status, and I agree and understand that I must use the appropriate Federal Express policies to resolve my work-related complaints and any other controversy arising out of my employment or the termination of my employment.

5. FedEx's Guaranteed Fair Treatment Procedure/EEO Complaint Process, Policy 5–5, which was in effect in 2003 for FedEx Express employees “provides a procedure for handling employee complaints, problems, concerns, and allegations of employment discrimination.” The GFT Procedure applies to all allegation of discrimination. It is a 3–step process.

6. FCIS's Open Door Policy, Policy 5–40, effective June 1, 2006, is designed to “encourage[s] employees to communicate their ideas and concerns directly to management.” There is no time restriction in using the Open Door Policy and no limit on the number of Open Door issues an employee can submit but an employee may submit only one Open Door on any particular concern. The Open Door policy provides that the Fair and Impartial Review/EEO Procedure, Policy 5–5, should be used for specific employee complaints such as discrimination because of sex.

7. In or about October 2003, Boaz was employed as a Grade 7 Quality Assessor, a non-exempt position with FedEx Express.

8. In late 2003 and early 2004, FedEx went through a reorganization referred to as I–Services. As part of the reorganization a new quality department for revenue operations was created under the supervision of Denyce Burns.

9. One of the persons affected by the I–Services reorganization was Jim Terrell, a Grade 27 Project Management Advisor (“PMA”), who was responsible for Ht U.S. Print & Archive Vendors supporting the nightly corporate load for Worldwide Revenue Operations (“WRO”). As part of the I–Services reorganization, his position was eliminated, he elected to take a voluntary buy-out, and the duties he was performing at that time, specifically those relating to the print vendor liaison function, were moved under the supervision of Burns.

10. In or about December 2003, Boaz was notified that she would shadow Terrell in order to gain knowledge of the day to day operation of the print vendor liaison duties. Initially, Boaz was asked to document all of Terrell's print vendor liaison duties.

11. From January 2004 through June 15, 2008, Boaz performed the duties Terrell was performing in January 2004. Boaz claims the duties she performed were identical to those Terrell performed as a Grade 27 PMA.

12. From January 2004 until June 2008, Boaz carried a beeper 24 hours a day, 7 days a week.

13. After the I–Services reorganization, Burns, along with the Human Resources and Compensation Departments with FedEx, determined that the print vendor liaison duties formerly performed by Terrell did not fit a Grade 27 Project Management Advisor position any longer, but instead fit either a Grade 25 Quality Administrator or Grade 23 Quality Specialist position.

14. A Grade 27 PMA position requires, among other things, a bachelor's degree in business, computer science, accounting, finance, or a related degree; seven years of exempt experience in project/program management, and experience in planning major projects. It requires the employee to lead multiple complex projects and has a pay scale different from the pay scale for a Grade 23 position.

15. The positions of Grade 25 Quality Administrator and Grade 23 Quality Specialist were posted and interviews were held to fill the positions.

16. Boaz applied for and was ultimately denied the right to interview for the Grade 25 Quality Administrator position. Human Resources and Compensation determined that Boaz did not meet the qualifications to be in a Grade 25 position which included a requirement that she have five years exempt level experience in project management.

17. On September 17, 2004, Boaz filed an internal Guaranteed Fair Treatment complaint with FedEx Express challenging FedEx's decision to deny her an interview for the Grade 25 position. Through the Guaranteed Fair Treatment process, on October 6, 2004, FedEx Express upheld its determination that Boaz was not qualified to hold a Grade 25 position.

18. Boaz chose not to proceed to Step 2 in the Guaranteed Fair Treatment process and did not appeal FedEx Express's determination that she was not qualified for a Grade 25 position.

19. On December 1, 2004, Boaz was offered and she accepted an exempt position as a Grade 25 Quality Administrator.

20. On February 8, 2005, Boaz wrote a letter to Janice Avery–Walthall, her Compensation Advisor for FedEx Express, requesting a compensation review for the period December 15, 2003 through December 1, 2004, for “duties being performed as a Grade 27 PMA.” According to Boaz's affidavit testimony, Walthall met with Boaz and told her that there was nothing either one of them could do.

21. On May 1, 2005, Boaz was notified that her Grade 25 position was mis-classified. On May 18, 2005, Boaz accepted an exempt position as a Grade 23 Quality Assurance Systems Analyst.

22. In or about June 2006, FedEx Global Strategic Planning moved under the umbrella of FedEx Customer Information Services (FCIS), a division of FedEx Services, and Boaz became an employee of FCIS.

23. In addition to filing the September 2004 Guaranteed Fair Treatment complaint while employed by FedEx Express, Boaz also filed three Open Door complaints with FCIS in April 2007, July 2007, and May 2008.

24. On April 23, 2007, Boaz filed her first Open Door request, addressed to Burns, in which she complained that she was not being compensated for carrying the beeper and working off-hours from February 2004 through the time of filing her complaint.

25. In Burn's written response to Boaz's first Open Door complaint, FCIS determined that as of June 1, 2007, Boaz could qualify under FedEx's Policy 3–44 and be awarded beeper pay going forward or continue to use a flexible schedule to compensate for any work required outside of a normal work schedule. Burns wrote: “[Y]ou have been encouraged to use a flexible schedule to compensate for any work required outside of a normal work schedule. Effective June 1, 2007, you will be given the option to continue the flexible schedule or submit time to be paid as described in P3–44.”

26. Not being satisfied with the determination, Boaz filed her second Open Door on July 13, 2007, this time addressed to Gregory B. Richards, in which she again requested compensation for carrying the beeper from February 2004 until June 2007 while acknowledging that FCIS had determined in her first Open Door complaint that her “job was not eligible for beeper pay between February 2004 and June 1, 2007.” Boaz did not receive a response to her second Open Door...