Gu v. Boston Police Dept.

• Decision Date: 02 December 2002
• Docket Number: No. 01-2354.,01-2354.
• Citation: 312 F.3d 6
• Parties: Joann GU and Carol Santoro, Plaintiffs, Appellants, v. BOSTON POLICE DEPARTMENT and Donald McGough, individually and in his official capacity as Director of the Office of Research and Evaluation of the Boston Police Department, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

312 F.3d 6

Joann GU and Carol Santoro, Plaintiffs, Appellants, v. BOSTON POLICE DEPARTMENT and Donald McGough, individually and in his official capacity as Director of the Office of Research and Evaluation of the Boston Police Department, Defendants, Appellees.

No. 01-2354.

United States Court of Appeals, First Circuit.

Heard July 29, 2002.

Decided December 2, 2002.

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Shannon Liss-Riordan, with whom Harold L. Lichten and Pyle, Rome, Lichten & Ehrenberg, P.C. were on brief, for appellants.

William V. Hoch, Staff Attorney, Office of the Legal Advisor, Boston Police Department, for appellees.

Before TORRUELLA, GREENBERG,^* and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiffs-appellants, Joann Gu and Carol Santoro, appeal from a grant of summary judgment for defendants-appellees, the Boston Police Department and Donald McGough. Plaintiffs first contend that defendants discriminated on the basis of sex by failing to promote either plaintiff to the position of Deputy Director of the Office of Research and Evaluation. Second, plaintiffs allege that they are victims of unlawful retaliation by defendants. Both claims purport violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e — 2000e-17, and Massachusetts General Laws chapter 151B, § 4(1). Finally, plaintiffs assert that they were paid less than men performing comparable work, in violation of the Federal Equal Pay Act, 29 U.S.C. § 206(d), and the Massachusetts Equal Pay Act, Mass. Gen. L. ch. 149, § 105A. Upon defendants' motion for summary judgment, the district court found no material facts in dispute and, thereafter, ruled in defendants' favor as a matter of law. After careful review, we affirm.

I.

Plaintiffs both work in the Office of Research and Evaluation ("ORE") for defendant Boston Police Department ("the Department"). Gu has held the position of Senior Research Analyst¹ since 1997, and Santoro, currently a Senior Crime Analyst, has worked at ORE since 1994. Both plaintiffs' positions place them within the MM-6 salary grade (Gu at step 7; Santoro at step 4).²

Defendant McGough is the current Director of ORE, a position he assumed in December 1998 after the prior director, Luis García, stepped down. Previously, McGough was the Deputy Director, a title typically assigned to the employee with the second-highest rank, and thus the most seniority, after the Director.

Shortly before McGough became Director, ORE received funding for a new MM-8 position. This position offered a much higher salary range than either of plaintiffs' jobs. Because of the higher grade, the new MM-8 employee would also sit higher in the office hierarchy. While García obtained the funding for this new position, it was McGough who ultimately created the job description and filled the position. McGough submitted this job description for the Department's approval in November 1998, and the posting focused on advanced technical skills, specifically training and experience in Geographic Information Systems ("GIS"). The Department gave its approval to the description in February 1999, and the posting officially appeared on March 2, 1999.

Plaintiffs both applied for the new position, after being encouraged by McGough. However, it was clear from the outset that Gu did not meet the basic requirements of the posting because she had very limited experience with GIS. Specifically, the posting required four years of experience with GIS, and Gu only had two days of training. Santoro also failed to meet this requirement, having only two years experience with GIS. Despite the disparity between plaintiffs' qualifications and the requirements of the job posting, both plaintiffs received interviews. Ultimately, neither was hired.

Another Department employee, Jeremy Cox, applied and interviewed for the MM-8 position. At the time, Cox worked as an MM-6 step 9 employee, but not in ORE. Cox did have significant GIS experience, and McGough originally expressed interest in filling the MM-8 position with Cox. However, Cox did not receive the job either. Later, he transferred to ORE as an MM-6 step 9 employee.

The position was ultimately filled by Carl Walter, who was working for the Charlotte-Mecklenburg Police Department at the time that he applied. Walter clearly met all the required qualifications and many of the preferred qualifications listed on the MM-8 job posting — a factor that set him apart from the plaintiffs and Cox. There was, however, some controversy regarding Walter's application because it was dated February 27, 1999, before the date of the official posting. Plaintiffs neither saw the job posting nor applied before its official posting on March 2, and defendants offer no explanation as to why Walter received the posting and applied early.

Upon selecting Walter for the MM-8 position, the Department also offered Walter the title of Deputy Director, ostensibly to make the offer more attractive and because, if hired, Walter would be the second-highest ranking employee in ORE (excluding ex-Director García who did not seek managerial responsibilities). It is undisputed that the Deputy Director, when there is one, has always been the second-highest ranking employee in ORE, after the Director. Plaintiffs further contend that the position of Deputy Director has always been filled from within by someone familiar with the office. However, it is also undisputed that the Deputy Director receives no added compensation, only added responsibilities.

Since McGough became Director in 1998, he has restructured ORE in various ways. ORE is generally divided into two teams: the research team and the crime analysis team. McGough has de-emphasized research, decreasing the number of employees in that area. Correspondingly, Gu has fewer employees working under her on research projects. The crime analysis team has also experienced changes, with several people being promoted to the level of Senior Crime Analyst and redistributions of responsibilities among Santoro and these new Senior Crime Analysts. Instead of being responsible for the entire City of Boston, Santoro now only works with statistics from one area of the city. Also, McGough has instituted several new checks on management: requiring two people to sit in on interviews, personally reviewing all hiring decisions, and limiting the use of overtime hours.

Following the hiring of Walter and restructuring of ORE, the plaintiffs filed their complaint alleging sex discrimination, violations of the Federal and Massachusetts Equal Pay acts, and retaliation. Following discovery, the district court granted summary judgment in favor of the defendants on all claims. This appeal followed in a timely fashion.

II.

We review grants of summary judgment de novo, viewing the facts in the light most favorable to the plaintiffs. Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir.2002). If no genuine dispute of material fact exists, we will affirm. Fed.R.Civ.P. 56.

III.

Plaintiffs challenge the grant of summary judgment as to each of their claims: (1) sex discrimination, (2) retaliation, and (3) violation of the equal pay acts. Because we find that there is no dispute of material fact, we affirm.

A. Sex discrimination

The gravamen of plaintiffs' sex discrimination complaint is that they were passed up for a promotion to Deputy Director of ORE because they are women. They claim that one of them was entitled to this position since, at the time that McGough became Director, they were the most senior employees in ORE. Rather than appoint one of the plaintiffs to this position, they allege that McGough went outside the Department to find a Deputy Director. This new Deputy Director, Walter, has no direct supervisory experience or familiarity with the Department or ORE. The only reason that McGough hired Walter and ignored them, plaintiffs claim, is because they are women, and McGough was opposed to having a woman in a position of authority.

An initial problem presents itself with plaintiffs' argument; they conflate the MM-8 position with the Deputy Director position. The fact that two separate jobs are involved creates a problem because it is undisputed that the MM-8 and Deputy Director positions, while eventually combined, entail different responsibilities and require different experience from applicants. The MM-8 position, as created by McGough, requires GIS expertise and offers a higher salary than that received by plaintiffs. The Deputy Director position involves additional managerial responsibilities but does not confer a salary increase. Since the Deputy Director has managerial responsibilities, familiarity with ORE and managerial experience can be seen as appropriate qualifications. At various times, plaintiffs equate the qualifications needed by the Deputy Director to those required in the MM-8 position, but it is clear that these are two separate positions with separate responsibilities. Therefore, we will tease out the arguments and facts pertaining to the different positions.

Turning to the substantive merits of plaintiffs' case, the familiar McDonnell Douglas burden-shifting framework applies to both the federal and state claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); McKenzie v. Brigham & Women's Hosp., 405 Mass. 432, 541 N.E.2d 325, 326-27 (1989) (applying McDonnell Douglas framework to analysis of discrimination claim under Mass. Gen. Laws ch. 151B). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Once the plaintiff makes out a prima facie case, the burden "shift[s] to the employer to articulate some legitimate, nondiscriminatory reason" for its actions. Id. If the defendant provides such a legitimate explanation, the plaintiff then has an opportunity to demonstrate that the proffered reason is pretextual. Id. at 804, 93 S.Ct. 1817. At all times, the...