Russell v. Microdyne Corp.
| Decision Date | 28 September 1995 |
| Docket Number | Nos. 93-1895,93-2078,s. 93-1895 |
| Citation | 65 F.3d 1229 |
| Parties | 68 Fair Empl.Prac.Cas. (BNA) 1602, 67 Empl. Prac. Dec. P 43,756 Marie B. RUSSELL, Plaintiff-Appellant, v. MICRODYNE CORPORATION, Defendant-Appellee. Equal Employment Opportunity Commission; Equal Employment Advisory Council, Amici Curiae. Marie B. RUSSELL, Plaintiff-Appellant, v. MICRODYNE CORPORATION, Defendant-Appellee. Equal Employment Opportunity Commission; Equal Employment Advisory Council, Amici Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Douglas Benjamin Huron, Kator, Scott & Heller, Washington, DC, for appellant. Karen Marie Moran, Office of General Counsel, Equal Employment Opportunity Commission, Washington, DC, for amicus curiae EEOC. Arne Morris Sorenson, Latham & Watkins, Washington, DC, for appellee. ON BRIEF: Philip J. Simon, Kator, Scott & Heller, Washington, DC, for appellant. James R. Neely, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Office of General Counsel, Equal Employment Opportunity Commission, Washington, DC, for amicus curiae EEOC; Douglas S. McDowell, Ann Elizabeth Reesman, McGuiness & Williams, Washington, DC, for amicus curiae Equal Employment Advisory Council. Penelope A. Kilburn, Latham & Watkins, Washington, DC, for appellee.
Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.
Reversed and remanded by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge MURNAGHAN and Senior Judge HARVEY joined.
Marie Russell filed suit against Microdyne Corp., her employer, alleging that it had discriminated against her on the basis of her sex in violation of Title VII, 42 U.S.C. Secs. 2000e to -17. Her complaint alleged that she had been denied promotion, had been subjected to sexual harassment in the workplace, and had been subjected to reprisal for her opposition to such treatment. Relying on "after-acquired evidence" of misrepresentations in Russell's resume and application for employment, which came to light as part of Microdyne's discovery in this litigation, Microdyne moved for summary judgment. The district court granted the motion and entered judgment for Microdyne on all counts. For the reasons stated below, we now reverse.
Russell holds a bachelor's degree in marketing from Pennsylvania State University, as well as a master's degree in business administration with a concentration in marketing from George Washington University. Following the completion of her undergraduate studies in 1984, she worked for approximately two years in the Washington, D.C., office of Wang Laboratories, at that time one of the leading computer manufacturers in the United States. At Wang, she worked as a sales representative, and as such undertook numerous marketing activities.
In 1986, Russell moved from Wang to become the Marketing Manager for Management Engineers, Inc. (MEI), a software company and value-added reseller that apparently specialized in developing applications and providing support for Wang computer systems. As marketing manager, she was involved in a plethora of marketing and public relations activities for this company. She was responsible to Peter Kauffman, the president of MEI, who later described her as an "excellent employee" and termed her work "creative and innovative." It was while working for MEI as its marketing manager that Russell also obtained her MBA degree from George Washington by attending night school.
At the end of 1989, MEI was forced for purely economic reasons to lay off a number of its employees. One of those so affected was Russell. Although Russell was laid off as a full-time employee, Kauffman valued her contribution to the company. As he later explained:
I wanted her to continue working for MEI, and we arranged that she would continue performing as Marketing Manager for MEI on a contract basis, with the expectation that she would average about 20 hours per week. She was paid at the rate of $25 per hour. Ms. Russell worked for MEI on this basis from early 1990 until she was hired by Federal Technology Corporation 1 in the fall of that year. It was my hope that MEI's financial situation would eventually permit us to bring Ms. Russell back full time, but this had not occurred by the time she was hired by Federal Technology Corporation.
(Footnote supplied). While continuing her duties for MEI, Russell also performed marketing duties on a part-time basis for two other companies, Market Dynamics, Inc., and Environmental Industries, Inc.
For purposes of summary judgment, the story told below is essentially that set out by Russell in her complaint and declaration. Microdyne essentially denies every allegation concerning its wrongdoing detailed therein. Microdyne placed an advertisement in the Sunday edition of the Washington Post on September 16, 1990, to fill the position of Marketing Assistant for a newly-acquired product line. Two days later, Russell sent Microdyne a letter and resume applying for the position. Shortly thereafter, she received a telephone call from Microdyne asking her to come in for an interview.
After arriving at Microdyne's offices, Russell was given an application form to complete. She indicated in the application that she was available on one week's notice, and that her requested salary was $40,000. In the section on experience, she listed MEI in the first set of questions. She indicated her starting salary with MEI to have been $32,000 and in response to a question regarding ending salary she wrote "$25/hr--50k." 2 After listing her starting date with MEI as "4/86," Russell placed dashes through the ending date, indicating that she was still employed by MEI. In response to the question "May we contact now?", Russell wrote "No." She later explained that while she understood that Microdyne could contact MEI before hiring her, she did not want MEI to know that she was in the market looking for another job, since MEI continued to hope that it could rehire her full time. In response to the form's question regarding her reason for leaving MEI, she wrote "growth, financial stability of company." While Russell listed MEI and Wang on the form and supplied information as to each, she did not list the two companies for which she had done part-time work over the preceding few months.
Russell interviewed with Ralph Mason, a senior vice president, Joe Losquardo, the Director of Marketing, and Paul Sinclair, the human resources manager. According to Russell's declaration filed in opposition to the motion for summary judgment, she did not attempt to conceal the fact that she was working part-time for MEI while also working for other companies at the same time. In her interview with Mr. Losquardo, he asked her whether she had any experience in the field of market research, and she indicated to him that she was doing such work for a company on a part-time basis. He asked for the name of the company, and she named Market Dynamics. In addition, when asked for phone numbers through which she could be reached, Russell provided the names and numbers of both Market Dynamics and MEI. 3
According to handwritten comments on her letter and application form, the company viewed her as an "A+" applicant who had "done it all," was "used to long hours" and whose demeanor was marked by "energy" and good "attitude." She was offered and accepted the position, with an initial salary of $60,000, fifty percent more than she had sought on her application.
Taking her allegations to be true for purposes of summary judgment, Russell walked into a nightmare of sexual harassment and anti-woman bias. During her time at Microdyne, Russell kept a diary in which she recorded many of her experiences on the job, a copy of which is included in the joint appendix and the substance of which is set out in her brief on appeal. We decline to repeat the details of her experience here in toto; suffice it to say that, if true, the behavior of all of the individuals involved, all senior personnel of the company, from the president down, was crude and reprehensible.
While Russell was employed at Microdyne, she received praise from a number of officials within the company, and she was apparently highly successful in handling the EXOS product line. Mason and others at some point became unhappy with Losquardo's performance as marketing director and decided to replace him. Mason asked Russell whether she would be able to assume the marketing director's responsibilities, and she responded that she would. Nevertheless, she never received this promotion. According to Russell's contemporaneous notes, at the end of July 1991, Mason called her into his office to show her a new sofa bed that had been installed. At the time, the bed was pulled out from the sofa. Mason put his arm around Russell and said, "Hey, want to get lucky, what do you say, you and me," while winking and pointing to the bed. Russell left his office. After Russell's return from a conference the next month, Mason called her into his office and told her that he was reorganizing the division and that the three individuals who reported to Russell were being taken from under her supervision. When asked why he was doing this, he said that he had his reasons, and, again according to Russell's contemporaneous notes,
[he] goes on to tell me an analogy about his wife who used to work in a chauvinistic environment but she changed jobs and is much happier now. He ended "I don't know what I am trying to say, but this is the way it is."
Rather than take this broad hint, Russell persevered in her position. During the fall, having met certain quotas, Russell approached a company official to ask about a contractually-required bonus. Three times this official asked her, suggestively, "What...
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