Chadwick v. Wellpoint, Inc.

• Decision Date: 02 May 2008
• Docket Number: Civil No. 07-70-P-H.
• Citation: 550 F.Supp.2d 140
• Parties: Laurie CHADWICK, Plaintiff v. WELLPOINT, INC. and Anthem Health Plans of Maine, Inc.
• Court: U.S. District Court — District of Maine

550 F.Supp.2d 140

Laurie CHADWICK, Plaintiff v. WELLPOINT, INC. and Anthem Health Plans of Maine, Inc.

Civil No. 07-70-P-H.

United States District Court, D. Maine.

May 2, 2008.

David G. Webbert, Matthew Sherburne Keegan, Elizabeth L.J. Burnett, Johnson & Webbert, LLP, Augusta, ME, for Plaintiff.

Margaret C. LePage, William P. Saxe, Pierce, Atwood LLP, Portland, ME, for Defendants.

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

D. BROCK HORNBY, District Judge.

INTRODUCTION

This is a case charging sex discrimination. Federal law prohibits sex discrimination in employment. Federal law does not prohibit discrimination based on an employee's parental obligations (sometimes called caregiver discrimination). But if an employer treats such caregivers differently according to sexual stereotypes, then the practice is sex discrimination prohibited by federal law.

Here, the plaintiff charges sex discrimination because she was denied a promotion for which she says that she was better qualified than her competitor. But the promotion went to another woman. The plaintiff is the mother of four. But the woman who received the promotion is the mother of two. The plaintiffs children were 6-year-old triplets and an 11-year-old. The other woman's children were a 10-year-old and a 15-year-old.¹ In explaining the promotion denial, the decisionmaker stated, "you're going to school, you have the kids, and you just have a lot on your plate right now," and that she and other supervisors would feel "overwhelmed" in the same circumstances.

Federal law affords no protection against discrimination if it is based solely upon young children or the number of young children. The plaintiff can prevail only if she can show that her employer used sex-based stereotyping about a mother's child-raising obligations for very young children — as contrasted with the child — raising obligations of males with very young children — to deny her this promotion. But the plaintiff has no evidence of preferential treatment of similarly situated males, nor of other remarks that show stereotyped assumptions about females' parenting obligations as contrasted with males'. Although preferential treatment of a similarly situated male is not a prerequisite to proving sex discrimination, and although it is well-known that our culture harbors sex-based stereotypes and there is room on this record for suspicion about stereotyping, I conclude that the plaintiff ultimately does not have sufficient evidence to go to a jury that this employer actually engaged in sex-based employment discrimination by promoting a different woman. After oral argument on April 25, 2008, I agree with the recommendation (although not all the reasoning²) of the magistrate judge, and GRANT the defendants' motion for summary judgment.

FACTS

On the defendants' motion for summary judgment, I take as true the plaintiffs version of disputed facts, and I draw all inferences in the plaintiffs favor.³ Therefore, I assume that the plaintiff had somewhat better qualifications than the woman who received the promotion (although that assertion is disputed).⁴ Three female supervisors were involved in the interviews and the promotion decision.⁵ Two of the supervisors made three references to children:

First, when one supervisor, Miller (the ultimate decisionmaker), first learned weeks earlier that the plaintiff had triplets, she said: "Oh my — I did not know you had triplets ... Bless you!" Pl.'s Statement of Additional Facts ¶ 6 (Docket Item 39-2); Defs.' Reply to Pl.'s Additional Statement of Facts ¶ 6 (Docket Item 43).

Second, in an interview leading up to the promotion decision, a different supervisor, who actually had encouraged the plaintiff to apply for the promotion, Pl.'s Statement of Additional Facts ¶ 59, asked the plaintiff how she would respond to a subordinate who failed to finish an assigned task on time. The plaintiff said that she would tell the subordinate that the subordinate should have informed her in advance so that the plaintiff could have found someone else to complete the task on time. The interviewer then responded, "Laurie, you are a mother would you let your kids off the hook that easy, if they made a mess in [sic] room, would you clean it or hold them accountable?" Defs.' Statement of Material Facts ("SMF") ¶ 68 (Docket Item 28); Pl.'s Response Statement of Material of Material Facts ("Response SMF") ¶ 68 (Docket Item 39-2).

Third, in explaining the decision not to promote her, the ultimate decisionmaker, Miller, stated: "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." "If they were in your position, [her supervisors] would feel overwhelmed." Defs.' SMF ¶¶ 60-61; Pl.'s Response SMF ¶¶ 60-61.

The plaintiff has no other evidence of sex-based stereotyping or discriminatory behavior, statements, or attitudes by these supervisors or any other employees or supervisors. The only evidence concerning the supervisors' treatment of males is that they promoted one male. He did not have children. Defs.' SMF ¶¶ 79-80; Pl.'s Response SMF ¶¶ 79-80.

The plaintiff would like to have her expert testify about the extent of sex-based stereotyping in the United States and its workplaces, the meaning of certain words (for example, that "Bless you" in the context in which Miller said it shows sexual stereotyping; likewise for the other supervisor's comment about child discipline strategy), and that it is very unlikely that a man would have been told that he had too much on his plate because of school and children.⁶ For the reasons I describe below, I conclude that the expert's testimony would not be helpful to a factfinder on the issues that are relevant to this decision, see Fed.R.Evid. 702; Daubert v. Merre.ll Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("Rule 702 ... requires that the [expert] evidence or testimony `assist the trier of fact to understand the evidence or to determine a fact in issue.'"); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ("The trial court had to decide whether this particular expert had sufficient specialized knowledge to assist the jurors `in deciding the particular issues in the case.'").

ANALYSIS

In Title VII of the Civil Rights Act of 1964, Congress prohibited employment discrimination based upon sex. 42 U.S.C. § 2000e-2(a). It did not prohibit discrimination based upon caregiving responsibilities.⁷ In 1971, the Supreme Court confronted the issue of how to treat parenting obligations in the context of Title VII's prohibition of sex discrimination. In a per curiam opinion, the Court held that it is sex discrimination to refuse to hire women with pre-school-age children, while hiring men with pre-school-age children. The Supreme Court ruled that the court of appeals "erred in reading this section as permitting one hiring policy for women and another for men — each having pre-school-age children." Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). Some courts and commentators call this "sex plus." As explained by one commentator: [W]hen one proceeds to cancel out the common characteristics of the two classes being compared [here, young children], as one would do in solving an algebraic equation, the cancelled-out element proves to be that of [young children], and sex remains the only operative factor in the equation. Larson, Employment Discrimination, § 40.04, at 40-12 (2d ed. 1996) (quoted in Coleman v. B-G Maint. Mgt. of Colorado, Inc., 108 F.3d 1199, 1203 (10th Cir.1997)); see Higgins, 194 F.3d at 259. But the prohibited discrimination remains sex-based, not child-based. "The central question in any employment-discrimination case is whether the employer would have taken the same action had the employee been of a different ... sex ... and everything else had remained the same." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir.1996). The Supreme Court has also held that a plaintiff can prove employment discrimination through evidence of sexual stereotyping, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and lower courts have concluded that sexual stereotyping does not require evidence of actual differential treatment of the opposite sex. See Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 113 (2d Cir.2004); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) (no evidence how the defendants treated similarly situated male employees, but evidence of discriminatory comments by key decisionmaker was enough that a reasonable jury could find discriminatory animus). See also EEOC Enforcement Guidance at 11; Larson, Employment Discrimination, § 8.03[6] (2d ed. 2006).

The parties devote much of their legal arguments to how to apply McDonnell Douglas⁸ pretext, Costa,⁹ and mixed motive analysis to the facts here. But whatever the plaintiffs theory of the case, in the final analysis she must have enough evidence, direct or circumstantial, to go to a jury, from which that jury could conclude that her supervisors considered her caregiving role as a female in their decision not to promote her (whether or not her sex ultimately made the difference). See Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 n. 5 (1st Cir.1999) ("A Title VII plaintiff must present sufficient evidence not only that the employer's proffered reason is false but also that the real reason is discrimination."). I conclude that she does not have such evidence.¹⁰

I examine the statements upon which the plaintiff relies for her claim of sex-based stereotyping.

First, the exclamation "Bless you," uttered upon learning that someone has triplets, cannot alone be turned into a stereotyped remark differentiating mothers of young children from fathers of young children....