Coward v. ADT Sec. Systems, Inc.

• Decision Date: 10 April 1998
• Docket Number: Nos. 97-7072,97-7073,s. 97-7072
• Citation: 140 F.3d 271
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 899, 73 Empl. Prac. Dec. P 45,355, 329 U.S.App.D.C. 309 Edward COWARD, Appellant, v. ADT SECURITY SYSTEMS, Inc., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 271

140 F.3d 271

76 Fair Empl.Prac.Cas. (BNA) 899,

73 Empl. Prac. Dec. P 45,355, 329 U.S.App.D.C. 309

Edward COWARD, Appellant, v. ADT SECURITY SYSTEMS, Inc., Appellee.

Nos. 97-7072, 97-7073.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 2, 1998.

Decided April 10, 1998.

Appeals from the United States District Court for the District of Columbia (Nos. 95cv02062, 95cv02388).

H. Vincent McKnight, Jr., Washington, DC, argued the cause and filed the briefs for appellant.

Max H. Lauten, Baltimore, MD, argued the cause and filed the brief for appellee.

Before: SENTELLE, TATEL and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge SENTELLE.

TATEL, Circuit Judge:

In this wage discrimination action, the district court found that neither plaintiff established a prima facie case and granted summary judgment for the employer. Although we agree with the district court with respect to one plaintiff, we find the other plaintiff satisfied the minimal evidentiary burden needed to raise a genuine issue of material fact with respect to his prima facie case. We therefore affirm in part, reverse in part, and remand.

I

Appellants Melvia Boling and Edward Coward are African Americans employed by appellee ADT Security Systems, Inc. A supplier of electronic security systems and services, ADT maintains a salary grade structure consisting of grades E-3 through E-20. Each grade has five salary "steps." Salary ranges within grades overlap: A top-step E-8, for example, earns approximately $11,000 more than a bottom-step E-9. ADT assigns job titles, codes, and grades to every employee. Employees with the same job title may have different codes, different grades, and even different duties; together, all of these factors determine salary. Job titles generally reflect duties performed and serve as important, although not dispositive, factors in setting salary.

Employed by ADT since the late sixties, Melvia Boling became a "Data Supervisor" in 1988 with a grade of E-8 and a salary of approximately $35,000. While working on a temporary project in 1995, Boling was given the title "Project Manager." She received no related increase in either grade or salary. All ADT Project Managers are white and all but two earn more than Boling. By contrast, Boling earns more than all Data Supervisors.

An E-8 for most of the last seventeen years, Edward Coward was briefly promoted in July 1994 to the position of Telecommunications Network and Facilities Manager ("TNFM"), with a grade of E-9. Approximately nine months later, ADT reclassified him from E-9 back to E-8, later changing his title to "Technical Support." Coward earns less than most TNFMs, all of whom are white; he earns more than most Technical Support staff.

Alleging that ADT pays them less than their white counterparts in violation of 42 U.S.C. § 1981 (1994), Boling and Coward brought suit in the United States District Court for the District of Columbia. Claiming that neither plaintiff had established a prima facie case of wage discrimination, ADT moved for summary judgment. The district court agreed, finding that Boling was a Data Supervisor, not a Project Manager; that Coward was Technical Support, not a TNFM; and that so viewed, neither had identified any similarly situated, better-paid white employees.

Boling and Coward now appeal the district court's grant of summary judgment for ADT. Our review is de novo. Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Although we draw all justifiable factual inferences in favor of Boling and Coward, they bear the burden of pointing to "affirmative evidence" establishing a genuine factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 2513-15, 91 L.Ed.2d 202 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Tao, 27 F.3d at 638 (citing Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 314 (D.C.Cir.1988)).

II

Because Boling and Coward allege intentional wage discrimination, we apply the familiar McDonnell Douglas burden-shifting test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n. 13, 93 S.Ct. 1817, 1824 & n. 13, 36 L.Ed.2d 668 (1973). Only the first stage of that test--the prima facie case--is at issue here. To establish a prima facie case, Boling and Coward must show by a preponderance of the evidence, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981), membership in a protected class (uncontested by ADT), and " 'that [they] were performing work substantially equal to that of [white employees] who were compensated at [ ] higher rate[s] than [they were]' " (vigorously contested by ADT). Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir.1996) (quoting Hohe v. Midland Corp., 613 F.Supp. 210, 214 (E.D.Mo.1985), aff'd, 786 F.2d 1172 (8th Cir.1986)) (alterations in original); see also Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir.1992) (prima facie case consists of showing membership in protected class and that plaintiff's job is similar to higher paying jobs occupied by non-class members). Although "minimal," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993), and "not onerous," Burdine, 450 U.S. at 253, 101 S.Ct. at 1094, the prima facie case "serves an important function," id. at 253-54, 101 S.Ct. at 1094:

[I]t eliminates the most common nondiscriminatory reasons for the plaintiff's rejection.... [T]he prima facie case raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.

Id. at 254, 101 S.Ct. at 1094 (citations and quotation marks omitted). If a reasonable factfinder could infer a genuine issue of material fact with respect to any element of the prima facie case--such as whether white employees performing substantially similar work earn more than the plaintiff--summary judgment at that stage is inappropriate.

To establish their prima facie cases, Boling and Coward relied on two types of evidence: a multiple regression analysis comparing salaries of minority and non-minority employees throughout the company; and comparisons of their actual individual salaries to those of immediate co-workers. We consider this evidence in Parts III and IV.

III

Controlling only for race and seniority, the multiple regression analysis shows that throughout ADT's Mid-Atlantic Division, the company pays African American employees approximately twelve percent less than white employees. Because the regression analysis failed to account for education or prior work experience, the district court excluded it from consideration.

The Supreme Court established the rule governing admissibility of regression analyses in discrimination cases in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986):

While the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors must be considered unacceptable as evidence of discrimination. Normally, failure to include variables will affect the analysis' probativeness, not its admissibility.

Id. at 400, 106 S.Ct. at 3009 (Brennan, J., concurring in part, joined by all Justices) (citations and quotation marks omitted). Qualifying this rule, the Court added that "[t]here may, of course, be some regressions so incomplete as to be inadmissible as irrelevant." Id. at 400 n. 10, 106 S.Ct. at 3009 n. 10. We too have explained that although "a defendant cannot undermine a regression analysis simply by pointing to variables not taken into account that might conceivably have pulled the analysis's [sic] sting ...[,] Bazemore [does not] require acceptance of regressions from which clearly major variables have been omitted--such as education and prior work experience." Koger v. Reno, 98 F.3d 631, 637 (D.C.Cir.1996) (citations omitted).

"Major factors" that a regression analysis must include depend on the facts and theory of the particular case. In Bazemore, for example, the Court found that omission of a variable accounting for differences in salaries by county, though relevant to plaintiffs' claim of state-wide wage discrimination, did not require exclusion of the regression analysis. Bazemore, 478 U.S. at 401-03, 106 S.Ct. at 3009-10. Depending on the theory of the case, some variables may be entirely unsuitable. Where plaintiffs allege discriminatory promotion practices, for example, this court considers inclusion of grade variables "inappropriate" because an employee's grade may itself reflect discrimination. Valentino v. U.S. Postal Serv., 674 F.2d 56, 72 n. 30 (D.C.Cir.1982) (citation omitted).

Applying these standards to this case, we find that the regression analysis was "so incomplete as to be inadmissible as irrelevant," Bazemore, 478 U.S. at 400 n. 10, 106 S.Ct. at 3009 n. 10, though for a reason not considered by the district court. The regression analysis failed to account for job title or any other variable representing type of work performed. This omission is fatal because Boling and Coward claim that they should be compared to employees in other job categories who perform similar work but who earn more than they. According to their own theory of the case, therefore, job title, or some other measure of type of work, serves as a "major factor" within the meaning of Bazemore. But because the regression analysis compares all employees in all job categories without accounting...