E.E.O.C. v. Txi Operations, L.P., 3:03-CV-1868-P.

• Decision Date: 13 January 2005
• Docket Number: No. 3:03-CV-1868-P.,3:03-CV-1868-P.
• Citation: 394 F.Supp.2d 868
• Parties: EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION, Plaintiff, v. TXI OPERATIONS, L.P., Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 868

394 F.Supp.2d 868

EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION, Plaintiff, v. TXI OPERATIONS, L.P., Defendant.

No. 3:03-CV-1868-P.

United States District Court, N.D. Texas, Dallas Division.

January 13, 2005.

Ronetta J. Francis, Robert A. Canino, Jr., Suzanne M. Anderson, Equal Employment Opportunity Commission Dallas District Office, Dallas, TX, for Plaintiff.

Ronald E. Manthey, Ellen L. Perlioni, Baker & McKenzie-Dallas, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

SOLIS, District Judge.

Now before the Court is Defendant TXI Operations, L.P.'s ("TXI" or "Defendant") Motion for Summary Judgment ("Def.'s Br."), filed September 7, 2004. Plaintiff Equal Employment Opportunity Commission ("EEOC") filed its Response ("Pl.'s Resp.") on October 13, 2004, and Defendant filed its Reply ("Def.'s Reply") on October 27, 2004. After considering the parties' arguments and briefing, and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment.

I. Background and Procedural History

On August 19, 2003, "Plaintiff Equal Employment Opportunity Commission ("EEOC" [or "Plaintiff"]) brought this lawsuit on behalf of Charging Party Julie Fundling (`Fundling') against [TXI] alleging (1) Equal Pay Act and (2) Title VII sex discrimination relating to her salary." Def.'s Mot. for Summ. J. ("Def.'s Mot.") at p. 1. Fundling asserts "her salary was discriminatory as compared to that of Wes Schlenker (`Schlenker'), a male employee. Fundling and Schlenker were both attorneys in TXI's legal department reporting to Robert Moore ("Moore"), TXI's Vice President, General Counsel and Secretary."

In November 1991, Moore hired Fundling to work in Defendant's legal department (the "legal department").¹ See Fundling dep. at p. 37, l. 25 to p. 38, l. 19 (Def.'s App. at pp. 146-47); Moore decl. at ¶ 2 (Def.'s App. at p. 103); Def.'s Offer of Employment (Pl.'s App. at p. 10). Fundling began with a starting annual salary of $57,500 as a Grade 13 employee, see Moore decl. at ¶ 9 (Def.'s App. at p. 104), and reported directly to Moore in her new position. Def.'s Offer of Employment (Pl.'s App. at p. 10). At the time of her hire, only Moore and Fundling worked in the legal department. Fundling dep. at p. 38, ll. 4-8 (Def.'s App. at p. 147). Previous to her employment with Defendant, Fundling worked as an associate with the law firm of Johnson & Gibbs, P.C. from approximately April 1990 to October 1991.² Moore decl. Ex. 2 (Def.'s App. at pp. 121-24).

At the time of her hire, TXI assigned Fundling a substantial amount of real estate matters in addition to her other duties. See Moore decl. at ¶¶ 4, 11-12 (Def.'s App. at pp. 103, 105). Unfortunately, Fundling had no experience in the area of real estate law. See Fundling Resume (Pl.'s App. at pp. 5-6). Indeed, from approximately 1992 to 1993, Fundling received three separate complaints regarding her work on real estate matters. Bone dep. at p. 27, l. 3 to p. 31, l. 2 (Def.'s App. at pp. 76-77). After the third complaint, Barry M. Bone ("Bone"), TXI's Real Estate Vice President, "informed [Moore] that the Real Estate Department would not use Fundling for any of their legal work going forward." Moore decl. at ¶ 14 (Def.'s App. at p. 105); Bone dep. at p. 31, ll. 3-12 (Def.'s App. at p. 77). As a result, Moore "authorized the Real Estate Department to take all of their legal work, with the exception of litigation relating to real estate matters and certain administrative matters relating to corporate governance and board resolutions, to outside counsel to handle." Moore decl. at ¶ 14 (Def.'s App. at p. 105).

Fundling received her first performance evaluation from Moore on August 12, 1994. (Pl.'s App. at pp. 15-23). Therein, Moore omitted any reference to Fundling's real estate difficulties. On the contrary, Moore noted that Fundling "[q]uickly gained the confidence of [TXI's] managers because of her willingness to work hard and her cooperative attitude," and further that "[c]onsidering her lack of experience she has performed very well and needs minimum supervision."³ Id. at 2. (App. at p. 22). Following "Fundling's August 12, 1994[,] performance evaluation, she received a salary increase to $65,000 per year, an increase of 13%, effective September 16, 1994." Pl.'s Resp. at p. 6 (citing Pl.'s App. at 24-25). Fundling then "received her second formal performance review from [] Moore on June 15, 1999." Id. (citing Pl.'s App. at 26-29). This second review contains no comments from Moore. Id. Thereafter, "[e]ffective June 14, 1999, [] Fundling received a merit salary increase to $74,796.00 per year, an increase of 15 percent." Id. (citing Pl.'s App. at p. 30).

"From December 2, 1991 until September 7, 1999, [] Moore and [] Fundling were the only full-time in-house attorneys employed by the Legal Department of TXI." Pl.'s Resp. at p. 10 (citing Fundling decl. at ¶ 22 (Pl.'s App. at p. 132)). However, "[i]n 1998, TXI dramatically increased its operations with the collateral effect of significantly increasing the legal department's work load." Moore decl. at ¶ 20 (Def.'s App. at p. 107). Subsequently, Moore began planning for the addition of another attorney to the legal department. Notably, during "Fundling's performance evaluation in June 1999, [] Moore and [] Fundling discussed the possibility of [Moore] hiring another in-house attorney. At that time, [] Moore told [] Fundling that depending on how much the new attorney would be paid, he would adjust her salary accordingly."⁴ Pl.'s Resp. at p. 11 (citing Pl.'s App. at p. 31); see also Fundling dep. at p. 86, l. 9 to p. 88, l. 11 (Def.'s App. at p. 159).

Thereafter, TXI apparently began preparations for the additional hire. "Just as [he] did before hiring Fundling, [Moore] went to the Vice President of Human Resources ... and asked that the compensation group conduct a market survey to determine a competitive salary for the new attorney position given the experience level [he] sought." Moore decl. at ¶ 25 (Def.'s App. at p. 7). After that, in April 1999, "a Job Description for a Grade 14 Attorney was drafted in preparation for Defendant's anticipated hire of a new attorney." Pl.'s Resp. at p. 11; see also Moore dep. at p. 114, ll. 1-11 (Pl.'s App. at p. 95). Moore "decided to offer the new attorney a starting salary of approximately $100,000 annually...." Additionally, in its ad listing, TXI stated that it sought "a corporate attorney for a diverse in-house practice," with a background of "5-8 years legal experience."⁵ (Pl.'s App. at p. 32). Specifically, the required background included "experience in corporate transactions, general contracts and real estate, financing and merger, acquisition and securities." Although several individuals applied for the position, Moore "screened them down from 30 to about 12...." Moore dep. at p. 117, ll. 14-24 (Def.'s App. at p. 8). After further interview rounds with various executives, TXI reached a consensus decision to choose Schlenker. Id. at p. 118, l. 2 to p. 122, l. 17 (Def.'s App. at pp. 9-10).

Moore extended the position to Schlenker at an initial salary of approximately $100,000. Moore decl. at ¶ 32 (Def.'s App. at p. 110). While Schlenker rejected this "starting offer," Moore adjusted the salary (as well as additional benefits) to an amount more suitable to Schlenker. Id. (Def.'s App. at pp. 110-11); see also Schlenker dep. at p. 68, l. 16 to p. 76, l. 25; Moore dep. at p. 125, ll. 2-23 (Def.'s App. at pp. 28-30; 32). Eventually, the parties reached agreement, and "[o]n August 20, 1999, [] Moore offered [] Schlenker the job as an attorney with an annual salary of $115,000.00." Pl.'s Resp. at p. 12 (citing Pl.'s App. at p. 34 ("Schlenker Offer of Employment")). Schlenker then called Moore and accepted that offer. Schlenker dep. at p. 79, ll. 11-21 (Def.'s App. at p. 31). At the time TXI hired Schlenker, Fundling earned an annual salary of $74,796.00. See Moore decl. at ¶¶ 26, 32, 45 (Def.'s App. at pp. 109, 110-11, 114).

After TXI hired Schlenker, he received projects directly from Moore. Cf. Moore decl. at ¶ 34 (Def.'s App. at p. 111) Both parties agree that Moore transferred some of Fundling's responsibilities to Moore. See Fundling decl. at ¶¶ 27-28 (Pl.'s App. at p. 133); Moore decl. at ¶¶ 36-37 (Def.'s App. at pp. 111-12). The reasons why Schlenker received certain projects-including work originally assigned to Fundling remains a disputed issue between the parties. Plaintiff charges Moore sexually discriminated against Fundling, see, e.g., Pl.'s App. at 36-37, while Defendant maintains it distributed assignments according to experience, and redistributed assignments to familiarize Schlenker with TXI. See Moore dep. at p. 126, l. 16 to p. 127, l. 12; Moore decl. at ¶ 37 (Def.'s App. at pp. 11; 112). Regardless, on October 1, 2001, Fundling filed a charge of sex discrimination with the Texas Commission on Human Rights and the EEOC "alleging unequal pay claims under both the [EPA] and Title VII". Pl.'s Resp. at p. 14 (citing Pl.'s App. at p. 36-37). Afterward, "[o]n October 15, 2001, [] Fundling received a merit salary increase to $95,000.00 per year, an increase of 27 percent." Id. (citing Pl.'s App. at p. 38).

In January 2002, Moore conducted Schlenker's first performance review, Moore decl. at ¶ 47 (Def.'s App. at p. 115), and "[o]n January 21, 2002, [] Schlenker received a merit salary increase to $124,000 per year, an increase of 7.8 percent." Pl.'s Resp. at p. 14 (citing Pl.'s App. at p. 45).

Later that year, "[i]n October 2002, the Board of Directors for Texas Industries, Inc., the publicly traded parent corporation of [TXI], voted Schlenker to be the Assistant Secretary for [TXI]." Moore decl. at ¶ 51 (Def.'s App. at p. 116). Schlenker, however, did not receive notice of his promotion until approximately eight months later in May 2003. See Moore dep. at p. 133, ll. 8-14; p. 134, l. 24 to p. 136, l. 21 (Pl.'s App. at pp. 97; 98-100). "As a result of the...