E.E.O.C. v. La Weight Loss

• Decision Date: 31 August 2007
• Docket Number: No. WDQ-02-0648.,WDQ-02-0648.
• Citation: 509 F.Supp.2d 527
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LA WEIGHT LOSS, Defendant.
• Court: U.S. District Court — District of Maryland

509 F.Supp.2d 527

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LA WEIGHT LOSS, Defendant.

No. WDQ-02-0648.

United States District Court, D. Maryland, Northern Division.

August 31, 2007.

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Gerald S. Kiel, Gwendolyn Young Reams, Ronald L. Phillips, Tracy Hudson Spicer, Cecile Celeste Quinlan, Pamela Elizabeth Hostetler, Stephen P. O'Rourke,

Equal Employment Opportunity Commission, Baltimore, MD, Suzanne Lenahan Nyfeler, Equal Employment Opportunity Commission, Richmond, VA, Corbett L. Anderson, Equal Employment Opportunity Commission, Washington, DC, M. Jean Clickner, Equal Employment Opportunity Commission, Pittsburgh, PA, for Plaintiff.

Elizabeth Torphy Donzella, Shawe and Rosenthal LLP, Baltimore, MD, Thomas Henry McDonough, Aliza Rebecca Karetnick, David L. Gollin, David E. Landau, Jonathan David Wetchler, Larry H. Spector, Wolf Block Schorr and Solis-Cohen LLP, Philadelphia, PA, for Defendant.

MEMORANDUM OPINION

WILLIAM D. QUARLES, Jr., District Judge.

The Equal Employment Opportunity Commission (the "EEOC") has sued LA Weight Loss Centers, Inc. ("LAWL"), for violations of Title VII of the Civil Rights Act of 1964,¹ as amended ("Title VII"). Pending are LAWL's motions for summary judgment and partial summary judgment, the EEOC's motion for partial summary judgment, and the parties' motions for leave to file surreply memoranda. For the following reasons, LAWL's motions for summary and partial summary judgment will be denied, the EEOC's motion for partial summary judgment will be granted in part and denied in part, and the motions for leave to file surreplies will be denied.

I. Background

LAWL is a Pennsylvania corporation and "leading national weight loss company." Amended Compl. ¶ 4; Def.'s Mem. in Supp. of its Mot. for Summ. J. ("Def.'s Mem.") 2. Since its founding in 1997, LAWL has offered nutritional plans, diet aids, and counseling services to its clients, and today operates approximately 400 weight-loss centers in Maryland and several other states. Def.'s Mem. 2, 5-6.

On June 22, 1998, Kathy Koch, a former LAWL employee, filed an amended employment discrimination charge with the EEOC, alleging that she was fired in retaliation for complaining about LAWL's failure to hire qualified male applicants. Def.'s Mem. 25, Ex. XX (amended charge). The EEOC commenced an investigation, and issued a letter of determination on September 14, 2000, finding reasonable cause that LAWL: (1) retaliated against Koch, and (2) discriminated against men in selection and hiring in all positions throughout the company. Pl.'s Mem. in Supp. of its Mot. for Partial Summ. J. ("Pl.'s Mem.") 2-4, App. C, Ex. 1, EEOC 00032-33 (letter of determination).

On February 22, 2002, the EEOC filed its original Complaint against LAWL, claiming LAWL (1) engaged in a pattern or practice of disparate treatment of men in its recruiting, hiring, and assignment of employees, and (2) retaliated against Koch for opposing such practices. Paper No. I. On July 15, 2002, Koch intervened as a plaintiff with her retaliation claim, and filed an amended complaint on August 26, 2002. Papers No. 13, 21.

On March 24, 2004, the EEOC filed its Amended Complaint, adding a claim that LAWL failed to preserve employment records as required under 42 U.S.C. § 2000e-8(c) and the EEOC's pursuant regulation, 29 C.F.R. § 1602.14. Paper No. 66.

On November 21, 2005, Koch entered into a settlement agreement with LAWL and voluntarily dismissed her retaliation claim with prejudice. Paper No. 144.

On March 9, 2007, following 33 months of discovery and attempts at settlement LAWL filed its motion for summary judgment on all claims (Paper No. 177), and the EEOC filed its motion for partial summary judgment on its document-preservation claim (Paper No. 178). On May 4, 2007, LAWL filed its opposition to the EEOC's motion, and incorporated a motion for partial summary judgment on the EEOC's retaliation claim. Paper No. 183. Also pending is each party's motion for leave to file surreplies to complement the 248 pages of memoranda already before the Court. Papers No. 194, 195.

II. Standard of Review

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only "facts that might affect the outcome of the suit under the governing law" are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In considering a motion for summary judgment, "the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. The court must also view any inferences drawn from the underlying facts "in the light most favorable to the party `opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257, 106 S.Ct. 2505. The mere existence of a "scintilla" of evidence is insufficient. Id. at 252, 106 S.Ct. 2505. If the nonmoving party fails to show an essential element of his case on which he will bear the burden of proof at trial, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. 317, 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e).

III. Discussion

A. Pattern or Practice of Disparate Treatment

LAWL moves for summary judgment on the EEOC's claim that LAWL has engaged in a pattern or practice of disparate treatment of men in its recruiting, hiring, and assignment of employees. LAWL argues that: (1) the EEOC lacks evidence of a prima facie case of such a pattern or practice of disparate treatment; and (2) in the alternative, LAWL is entitled to summary judgment on the EEOC's claims for male applicants who were denied employment prior to the charge-filing deadline in 42 U.S.C. § 2000e-5(e).

B. Pattern-or-Practice Legal Framework

Section 707 of Title VII empowers the EEOC to sue "any person or group of persons ... engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII]." 42 U.S.C. § 2000e-6.

The EEOC bears the initial burden of proving a prima facie case of a pattern or practice of unlawful disparate treatment. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); E.E.O.C. v. Am. Nat. Bank, 652 F.2d 1176, 1188 (4th Cir.1981), reh'g denied, 680 F.2d 965 (4th Cir.1982), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). "This prima facie showing may in a proper case be made out by statistics alone, or by a cumulation of evidence, including statistics, patterns, practices, general policies, or specific instances of discrimination." Am. Nat. Bank, 652 F.2d at 1188 (citing, inter alia, Teamsters, 431 U.S. at 339, 97 S.Ct. 1843; Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977)). Although most pattern-or-practice discrimination cases are proved through the use of statistics, statistical evidence is not necessary to establish a prima facie case. See United States v. Gregory, 871 F.2d 1239, 1243 (1989) (defendant's admission of discriminatory practices proof of Title VII violation). However,

[p]roving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance of the evidence that [unlawful] discrimination was the company's standard operating procedure-the regular rather than the unusual practice.

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (internal quotation marks omitted).

If a prima facie case is established by the EEOC, the burden shifts to the employer to rebut the inference of a pattern or practice of disparate treatment. Id.

C. Analysis of the Pattern-or-Practice Evidence

To prove a prima facie case of disparate treatment of men, the EEOC offers: (1) LAWL employee admissions of discriminatory practices; (2) testimony of rejected male applicants; (3) documentary evidence; and (4) statistical evidence.

The testimonial evidence alone demonstrates genuine issues of material fact regarding the EEOC's pattern-or-practice claim. Admissions by upper-level LAWL employees made within the scope of their employment indicate a practice of disparate treatment of male job applicants, and rejected male applicants were told by LAWL officials that they would not be hired because of their sex.

Joy Freathy was an LAWL Regional Manager from 1997 through December 1999 whose responsibilities included interviewing potential area and center managers. Pl.'s Opp'n Ex. 2 ¶ 1 (Freathy Decl.). Freathy attests that, during her employment, she was told by LAWL general manager Eileen Stankunas that Vahan Karian, LAWL's sole owner and chief executive officer, told Stankunas that men were not to be hired for any positions. Id. ¶ 2.

Former LAWL mid-level employees Koch, Anastasia Meyer, and Pat Burroughs attest that Scott Moyer, LAWL's chief operating officer from 1997 through mid 1998, and Kristi O'Brien, LAWL's director of training, instructed them during a November 1997 training event to refrain from hiring men. Pl.'s Opp'n Ex. 4 at 25-26 (Moyer Dep.), Ex. 8 at 58 (O'Brien Dep.), Ex. 5 at 64-66, (Koch Dep.), Ex. 6 at 78-81 (Meyer Dep.), Ex. 7 at 2 (Burroughs Decl.). O'Brien also told LAWL...