Thomas v. Eastman Kodak Co.

• Decision Date: 22 September 1998
• Docket Number: Civil Action No. 96-10890-WAG.
• Parties: Myrtle THOMAS, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

18 F.Supp.2d 129

Myrtle THOMAS, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant.

Civil Action No. 96-10890-WAG.

United States District Court, D. Massachusetts.

September 22, 1998.

COPYRIGHT MATERIAL OMITTED

Marisa A. Campagna, Campagna & Riley, Boston, MA, for Plaintiff.

Jon M. Nelson, Michael A. Fitzhugh, Fitzhugh & Associates, Boston, MA, for Defendant.

MEMORANDUM OF DECISION

GARRITY, District Judge.

Myrtle Thomas ("Thomas"), plaintiff in this employment discrimination case, was laid off by Eastman Kodak Company ("Kodak"), defendant. Kodak selected Thomas for layoff based on her past performance evaluations; since these evaluations were racially biased, plaintiff argues, her layoff was illegal under Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 259, codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). Defendant, moving for summary judgment, argues that plaintiff's claims are time-barred or, in the alternative, lacking evidence of racial animus sufficient to reach a jury. The Court finds that plaintiff's claim, while timely, cannot survive summary judgment. We therefore grant defendant's motion.

Facts

In deciding a motion for summary judgment, "we state the facts in the light most favorable to the nonmoving party, indulging all inferences in that party's favor." Dykes v. Depuy, Inc., 140 F.3d 31, 33 (1st Cir.1998). Plaintiff alleges a number of incidents and statements that defendant denies or does not discuss; in deciding this motion, we accept plaintiff's version in all cases.

Plaintiff is a black woman. Kodak hired her in 1974 to work in Rochester, New York. In 1980, Thomas was promoted to Customer Support Representative ("CSR"). She was trained and transferred to the Office Imaging division in the Wellesley, Massachusetts office. Thomas worked in the Wellesley office until she was laid off in March 1993. In July 1993, Thomas filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a Right to Sue Letter on February 5, 1996. Plaintiff sued in this Court on May 2, 1996.

CSRs were sales, marketing and customer support personnel. Each CSR supported customers in an assigned territory who owned Kodak copiers and other equipment. CSRs trained customers and other personnel in use and maintenance of Kodak's products, helped salespeople perform installations, and worked to keep customers satisfied with Kodak imaging equipment and service. Six CSRs worked in the Wellesley office. For the thirteen years Thomas there, she was the only black CSR.

In 1993, Kodak decided to implement a reduction in force in its North American office imaging divisions. Kodak planned to eliminate approximately 80-100 positions, including two CSRs in the Wellesley office. To decide whom to lay off, defendant used the Performance Appraisal Ranking process, or "PAR process." The PAR Process was based on each employee's last three Performance Appraisals ("PAs"). Supervisors completed annual PAs for each of their employees. Kodak used the PA system to "reward each individual's job performance appropriately." Def.'s Summ. J. Mem., Ex. O. Further, defendant "expected supervisors to use appraisals for," among other things, "determining who should be promoted, transferred, demoted, terminated, laid off, and re-employed." Id. The PA included written comments and numerical ratings in several areas. Each employee also received an overall rating, from a low of one to a high of seven. In the PAR process, defendant applied employees' overall ratings to a formula, weighting the most recent two evaluations. Thomas's PAR process number was the lowest in her group; she was laid off along with the second-lowest-rated CSR, a white woman.

Generally speaking, Thomas was a good employee. Before 1990, plaintiff was supervised and evaluated by District Sales Manager Richard Austin, Sales Managers Garrie O'Neill and Katherine Sullivan, and briefly by Customer Service Manager Tim O'Connor. She received positive evaluations, as well as awards and bonuses from Kodak. Her 1988 and 1989 PA ratings were respectively five and six. After her 1989 evaluation, Thomas was given a grade change from K4 to K6, increasing her salary by $19.00 per week without changing her job description.

In 1989, Kodak created the position of Customer Support Manager. When Thomas asked to be considered for this position, she was told she was not at the correct grade level. Instead, Claire Flannery ("Flannery"), who was then working as a secretary, became the Customer Support Manager, and began to supervise the Wellesley CSRs including Thomas. Problems in the working relationship developed between Flannery and Thomas. Plaintiff alleges a series of incidents between the two; we include four examples. When Flannery and Thomas were to give a customer presentation together, Flannery took over the presentation and left no time for Thomas. When Thomas asked what happened, Flannery said she got a little carried away. Flannery scheduled a customer appointment for Thomas, but gave Thomas the wrong time. Thomas was over two hours late. When plaintiff confronted her, Flannery denied giving the wrong time. Thomas then replayed Flannery's voicemail message to Flannery and others in the office. Flannery finally admitted she was wrong, but refused to write the customer to clarify why Thomas had been late. Flannery did not train Thomas on the office computer as she did other employees. Flannery scheduled meetings and insisted on employees' attendance. On one occasion, when Thomas attempted to leave a meeting to make a customer visit, Flannery became upset and physically blocked the door.

Flannery's gave plaintiff lower PA ratings than had her previous supervisors. Flannery also rated Thomas lower than other CSRs. In 1990, Flannery gave Thomas an overall PA rating of three, citing a failure to file weekly and quarterly reports. Before Flannery took over, CSRs were not required to submit such reports. During Flannery's tenure, none of the other Wellesley CSRs received an overall PA rating below four. Flannery told Thomas she could score no higher than a three because she had recently changed grades. Kodak had no policy that a grade change would result in lower ratings. Thomas refused to sign her 1990 PA, believing it did not fairly reflect her work. In 1991 and 1992, Flannery gave Thomas increasing PA ratings of four and five. Thomas did not see or sign the 1992 PA. Thomas received pay raises of $30.00 and $29.00 per week in 1991 and 1992.

In addition to her performance reviews, plaintiff submits the following events and situations as evidence of unlawful discrimination. When plaintiff was transferred to Wellesley, Kodak did not fly her to Massachusetts, as it had other transferred employees. Instead, Thomas was told to drive a car that had been requested by Richard Austin, her new supervisor. The car was in disrepair, requiring a new muffler. Though other employees had two weeks in a new location before reporting to work, plaintiff was told to report right away.

As part of plaintiff's move benefits, Kodak provided storage for her belongings. The warehouse burned in 1981, destroying virtually all of Thomas' belongings. Thomas gave Austin an inventory of her losses; in response, he asked, "Are you rich or something?" Before Thomas was reimbursed, another Kodak employee encouraged her to change her inventory listing. Defendant did not reimburse Thomas for five years.

A few months after Thomas began working in Wellesley, she was standing with a group of employees when Austin introduced two visiting sales managers. Austin introduced everyone in the group except Thomas.

In 1983, Thomas passed a co-worker in the hallway outside the department manager's office. The co-worker asked the manager if plaintiff was "here to do the cleaning."

Thomas lost a gold bracelet at work. A co-worker announced finding it just before a sales meeting, as other employees arrived. Thomas claimed the bracelet, and described it at his request. He refused to return the bracelet until he had confirmed that it did not belong to another, white female employee.

Plaintiff believes she was overlooked when Kodak created the Customer Service Manager position. She was studying for a master's degree in business, and had more seniority as a CSR than Flannery, who was promoted.

Timeliness

Defendant first argues that plaintiff's claim is time-barred. Plaintiff's case hinges on the three performance appraisals ("PAs") she received from Flannery. Thomas alleges that Kodak dismissed her because of low numbers on these PAs, and that Flannery's racial bias lowered these numbers. Defendant argues that, since Flannery completed these PAs before the window of examination allowed by Title VII, plaintiff cannot challenge their validity and thus has no case.¹ Plaintiff responds that defendant waived this argument by omitting it from the answer. See Zipes v. Trans World Airlines, 455 U.S. 385, 392-394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (holding Title VII timely filing requirement non-jurisdictional and therefore subject to waiver). Whether defendant's answer sufficiently reserved this argument is a question mired in the murky world of civil procedure and responsive pleadings. Since defendant's argument fails on the merits, we do not decide whether its answer language sufficiently preserved the issue.

The Court holds that an employee's receipt of a performance review does not, standing alone, mark the beginning of the 300-day Title VII window of 42 U.S.C. § 2000e-5(e)(1).² Since our circuit has not squarely addressed this question, we look for guidance elsewhere. Closest to the facts at bar we find Colgan v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir.1991) (en banc).³ In Colgan, defendant fired plaintiff after a highly negative performance review. Plaintiff filed his EEOC claim in time to challenge his termination but not the performance review....